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State v. Dodge

Supreme Court of Montana

December 28, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
JUSTIN BOYD DODGE, Defendant and Appellant.

          Submitted on Briefs: November 1, 2017

          APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 15-444B Honorable Robert B. Allison, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant Appellant Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

          Ed Corrigan, Flathead County Attorney, John H. Donovan, Kalispell, Montana

          OPINION

          Laurie McKinnon Judge

         ¶1 Justin Boyd Dodge (Dodge) appeals from a judgment and sentence of the Eleventh Judicial District Court, Flathead County, imposing $14, 438.44 in restitution following his guilty plea for driving under the influence of alcohol or drugs (DUI). We reverse and remand for the District Court to conduct a new restitution hearing and resentence Dodge.

         ¶2 Dodge presents the following issue for review:

Whether the District Court erred in ordering Dodge pay restitution for damaging a traffic signal without the State providing an affidavit or testimony specifically describing its pecuniary loss.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 On November 10, 2014, while driving under the influence of methamphetamine in Kalispell, Montana, Boyd drove off the road and collided with a concrete block and traffic signal control box. Subsequently, Boyd pleaded guilty to felony DUI. Probation Officer Rae Baker (Baker) prepared a presentence-investigation report (PSI), in which she recommended Dodge pay $14, 438.44 in restitution to the victim, the Department of Transportation. Baker attached two documents prepared by the Department of Transportation to the PSI: an invoice (Invoice) and a "Cost of Repair" ledger entry (Ledger Entry). Both documents included a total cost of $14, 438.44 to repair the damaged traffic signal.

         ¶4 On October 27, 2016, the District Court held a sentencing hearing. The parties did not present testimony at the hearing. The State recommended the District Court sentence Dodge to a thirteen month commitment to the Department of Corrections (DOC) for placement in the WATCh program, followed by a suspended five-year probationary term.

         The State also recommended the District Court require Dodge pay $14, 438.44 in restitution. Dodge objected to the restitution recommendation, stating:

The statute [ยง 46-18-242, MCA, ] says that -- that there should be an affidavit. The wording says "shall, " so we would ask that the restitution not be imposed and since there's nobody here to testify about the suggested restitution we don't know if they mitigated damages, if they sold any of the pieces or if they actually tried to shop around on the employee that charged a decent amount to do ...

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