                                                                                              January 17 2012


                                          DA 11-0214

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2012 MT 5N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

ROBERT CARL BROWN,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Third Judicial District,
                       In and For the County of Granite, Cause No. DC 10-08
                       Honorable Ray Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski, Assistant
                       Appellate Defender, Helena, Montana

                For Appellee:

                       Steve Bullock, Montana Attorney General; Tammy K Plubell, Assistant
                       Attorney General, Helena, Montana

                       Christopher Miller, Granite County Attorney, Philipsburg, Montana



                                                    Submitted on Briefs: December 21, 2011

                                                               Decided: January 17, 2012


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Robert Carl Brown appeals from the judgment and sentence entered by the Third

Judicial District Court, Granite County, convicting Brown of the offense of misdemeanor

criminal mischief, in violation of § 45-6-101(1)(a) and (3), MCA, upon his nolo

contendere plea. Brown was charged for his role in damaging automobiles belonging to

four persons, including cutting the tires on a vehicle belonging to Darell McDonald.

Brown raises several issues regarding the restitution he was ordered to pay to McDonald

by the District Court.

¶3     McDonald lives in Phillipsburg and had purchased four new tires for his truck

from a tire dealer in Missoula shortly before the incident giving rise to the charge in this

case. Due to medical problems necessitating out-of-town appointments for which he

needed prompt repairs for his vehicle, and upon a deputy’s request that a damaged tire be

taken apart by the Missoula tire dealer, McDonald made multiple trips to Missoula to

coordinate replacement and repair of the tires. He requested restitution in the amount of

$1,783.90, including tire damage and repair, travel costs, and $50 for a gratuitous reward

he had paid to the citizen who called police upon observing Brown’s actions, leading to

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Brown’s arrest.     McDonald received reimbursement from his insurance company,

Allstate, in the amount of $1,041.90. The District Court concluded that, after crediting

McDonald with the insurance reimbursement, he was entitled to further restitution in the

amount of $547.50, including reimbursement of the $50 reward, which the District Court

characterized as “iffy.”

¶4     Brown argues that McDonald was made whole by his insurance payment and that

his request for additional restitution is an effort to collect twice for his damages. He

argues that McDonald’s trips to Missoula were excessive, McDonald failed to mitigate

his damages, the District Court misapprehended the number of tires that needed to be

replaced, and that the $50 reward was voluntary and not caused by the accident, citing

State v. Coluccio, 2009 MT 273, 352 Mont. 122, 214 P.3d 1282.

¶5     “The appropriate measure of restitution is a question of law, which we review for

correctness.” State v. Johnson, 2011 MT 116, ¶ 13, 360 Mont. 443, 254 P.3d 578

(citation omitted). “In reviewing a district court’s findings of fact as to the amount of

restitution, our standard of review is whether those findings are clearly erroneous.”

Johnson, ¶ 13 (citation omitted).

¶6     We agree with Brown that because the $50 reward was made gratuitously after

Brown had been arrested, it was not caused by Brown’s criminal behavior and was

improperly included in the restitution amount.       As to the remainder of Brown’s

arguments, we have determined to decide this case pursuant to Section I, Paragraph 3(d)

of our Internal Operating Rules, which provides for noncitable memorandum opinions.

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Having reviewed the briefs and the record on appeal, we conclude that the District

Court’s findings of fact are supported by substantial evidence and the legal issues are

controlled by settled Montana law, which the District Court correctly interpreted.

¶7    Affirmed in part, reversed in part, and remanded for entry of an amended

judgment striking the $50 reward from the restitution obligation.



                                                /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON




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