State v. Mitchell

NO. 92-325
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DOUGLAS C. MITCHELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bradley B. Parrish, Attorney at Law, Lewistown,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, John Paulson,
Assistant Attorney General, Helena, Montana
Thomas P. Meissner, Fergus County Attorney,
Lewistown, Montana
Submitted on Briefs: December 22, 1992
Justice Karla M. Gray delivered the Opinion of the Court.
Douglas C. Mitchell appeals from an order of the Tenth
~udicial~istrict
Court, Fergus County, denying his Motion to Amend
Sentence. We affirm on procedural grounds.
Appellant Mitchell presents the issue as whether the District
Court erred in ordering the payment of interest as part of
restitution.
On February 12, 1991, Mitchell entered a plea of guilty to the
offense of felony robbery of the Norwest Bank of Lewistown,
Montana. The District Court subsequently held a sentencing hearing
and, on May 30, 1991, entered a sentencing order. As part of his
sentence, appellant was ordered to pay restitution in the amount
taken from the bank, together with interest thereon at the rate of
10% from the date of the robbery. No objection was made to the
sentence; no appeal was taken.
On April 8, 1992, some ten months after the original
sentencing order, appellant moved the District Court to amend the
restitution portion of his sentence. He asserted that neither
statute nor case law authorized interest as part of restitution and
contended for equitable consideration on the basis of his inability
to pay the interest. The District Court determined that it was
reasonable to include the interest expense associated with the loss
of money in restitution and denied the motion. This appeal
followed.
Appellant raises a number of legal arguments in support of his
contention that a district court may not include as restitution
2
interest on the amount of money stolen. We decline to address this
issue on the merits.
Appellant's legal arguments challenging the validity of the
inclusion of interest as part of restitution in the original
sentence could and should have been raised on appeal from the
original sentencing order dated May 30, 1991. No appeal having
been taken, we will not consider the arguments here.
We note that 5 46-18-246, MCA (1989), provided Mitchell an
alternative avenue for modification of the restitution portion of
his sentence. That statute allows an offender to petition the
sentencing court at any time "to adjust or otherwise waive payment
of any part of any ordered restitution" on essentially equitable
grounds. -
Id. However, Mitchell did not petition the court
pursuant to the terms of 5 46-18-246, MCA. As a result, it appears
that the statute's procedural requirements were not met;
furthermore, the court did not act pursuant to the statute in
denying Mitchell's motion.
For these procedural reasons, we affirm the District Court's
denial of appellant's motion.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
January 12, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
BRADLEY B. PARRISH
Attorney at Law
209 Bank Electric Bldg.
Lewistown, MT 59437
HON. MARC RACICOT, Attorney General
John Paulson, Assistant
Justice Bidg.
Helena, MT 59620
THOMAS P. MEISSNER
Fergus County Attorney
Fergus County Courthouse
Lewistown, MT 59457
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY
Depu
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