                                      No. DA 06-0323

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 187N

                                                  ____________________________________

STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

DAVID MICHAEL SMITH,

              Defendant and Appellant.

                                                  ____________________________________


APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and for the County of Missoula, Cause No. DC-91-9779,
                     The Honorable Edward P. McLean, Presiding Judge.


COUNSEL OF RECORD:

              For Appellant:

                     David Michael Smith (pro se), Deer Lodge, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General, C. Mark Fowler, Assistant
                     Attorney General, Helena, Montana

                     Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana

                                                  ____________________________________

                                                           Submitted on Briefs: July 3, 2007

                                                                   Decided: August 6, 2007

Filed:

                   _____________________________________________
                                       Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court 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     Appellant David Michael Smith (Smith) appeals from an order of the Fourth

Judicial District Court, Missoula County, denying his motion for entry of order waiving

payment of restitution and for return of collected funds. Smith challenges the collection

of one-third of his prison earnings for his restitution obligations imposed in Cause

Number DC-91-9779, Missoula County, following his conviction for forgery. Although

Smith apparently has fulfilled his prison term related to his forgery conviction, he

remains in prison under a separate, unrelated sentence, and apparently continues to earn

income from which the Department of Corrections (DOC) garnishes one-third of his

wages pursuant to § 46-18-244(6)(a), MCA. We affirm.

¶3     Smith argues on appeal that the legislature’s amendments to § 46-18-241, MCA

(2003), as applied to him, violate the constitutional prohibition against the advocation of

ex post facto laws. The State counters that Smith failed to raise his claim before the

District Court and that restitution does not constitute punishment and thus cannot be the

proper subject of an ex post facto claim.

¶4     Smith next argues that the District Court erred in failing to hold a hearing as

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required by § 46-18-246, MCA, to determine whether imposition of restitution would

constitute a hardship for him. The State argues that no hearing is necessary in light of the

fact that Smith did not properly request a waiver of modification of his restitution

obligations and his petition did not implicate the victim’s right to restitution. Thus, the

State argues that any evidentiary inquiries by the court into Smith’s “facially groundless

motion” would be redundant and would controvert the well established legal maximum

that “the law neither does nor requires idle acts.” In re Marriage of Pfeifer, 1998 MT

228, ¶ 18, 291 Mont. 23, ¶ 18, 965 P.2d 895, ¶ 18.

¶5     We review a criminal sentence for legality only. In other words, we review

whether the sentence falls within statutory parameters. State v. Denham, 2005 MT 26, ¶

5, 326 Mont. 24, ¶ 5, 107 P.3d 1263, ¶ 5. A question of statutory interpretation presents a

question of law that we review for correctness. Denham, ¶ 5.

¶6     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, that provide for memorandum

opinions. It is manifest on the face of the briefs and the record before us that settled

Montana law clearly controls the legal issues and that the District Court correctly

interpreted the law.

¶7     We affirm.

                                                 /S/ BRIAN MORRIS
We Concur:

/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM RICE

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