Submitted on Briefs: November 1, 2017
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
Appellant: Chad Wright, Chief Appellate Defender, Moses
Okeyo, Assistant Appellant Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana
Corrigan, Flathead County Attorney, John H. Donovan,
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.
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.
AND PROCEDURAL BACKGROUND
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.
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.
State also recommended the District Court require Dodge pay
$14, 438.44 in restitution. Dodge objected to the restitution
The statute [§ 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 ...