                                                                                        July 13 2010


                                          DA 09-0630

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2010 MT 147



SHANE BUCHER,

              Plaintiff and Appellant,

         v.

PATRICK HAROLD HUGHES,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Ninth Judicial District,
                        In and For the County of Toole, Cause No. DC 01-028
                        Honorable Laurie McKinnon, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Lawrence A. Anderson, Attorney at Law, Great Falls, Montana

                For Appellee:

                        Colin M. Stephens, Smith & Stephens, Missoula, Montana



                                                   Submitted on Briefs: June 9, 2010

                                                               Decided: July 13, 2010




Filed:

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

¶1     Shane Bucher (Bucher) appeals the Judgment of the Ninth Judicial District Court,

Toole County. We affirm.

¶2     We review the following issue on appeal:

¶3     Did the District Court improperly deny interest to Bucher on Hughes’s restitution

obligation imposed as part of a criminal judgment?

                    FACTUAL AND PROCEDURAL BACKGROUND

¶4     Patrick Harold Hughes (Hughes) recklessly drove a motorcycle down Main Street of

Shelby, Montana, in June of 2001. Hughes struck Bucher, a pedestrian, who was walking

across the street. Bucher suffered major injuries from the collision, including severing his

left leg at the knee.

¶5      The State of Montana (State) charged Hughes with negligent vehicular assault,

driving under the influence of alcohol, and driving without a motorcycle license. Hughes

eventually entered a guilty plea to the charge of negligent vehicular assault in 2003. The

District Court committed Hughes to the Montana Department of Corrections (DOC) for a

term of six years, with all time suspended. The court further ordered Hughes to pay Bucher

restitution in the amount of $2,718 for Bucher’s medical expenses, and $34,415.70 for his

lost wages. Hughes’s restitution obligation totaled $37,133.70.

¶6      The District Court’s criminal judgment did not require Hughes to pay any set

monthly payments towards Bucher’s restitution. The judgment only required that Hughes

had to pay the full amount of restitution at least ninety days before his release from

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probation. Hughes abided by the terms of his suspended sentence and sent Bucher regular

payments for six years—typically $100 per month—for the restitution owed.

¶7     The State moved to revoke Hughes’s suspended sentence toward the end of his DOC

commitment in 2009, however, based upon Hughes’s failure to pay the restitution amount in

full. The court held a hearing on June 29, 2009. Hughes’s parole officer testified that

Hughes had made reasonable efforts to make restitution payments. The parole officer

testified that $100 per month represented the most that Hughes reasonably could pay toward

restitution in light of his financial situation and other obligations that included child support.

The District Court determined that Hughes had made a good-faith effort to pay the

restitution owed to Bucher. The court denied the State’s motion to revoke Hughes’s

sentence.

¶8     The District Court elected instead to convert the restitution amount to a civil judgment

against Hughes. Bucher proposed a civil judgment in the amount of $37,133.70—identical

to the original amount of restitution imposed by the court six years earlier as part of the

criminal judgment. Bucher argued that the language of § 46-18-249, MCA, required the

District Court to enter the “total amount” of the restitution in the civil judgment. Bucher

argued further that he was entitled to over $20,000 in interest that had been accruing since

the court first had imposed restitution in Hughes’s criminal judgment. Hughes argued that

he deserved credit for the $7,170 that he already had paid to Bucher. The court entered a

civil judgment against Hughes in the amount of $29,463.70—the amount of unpaid

restitution—pursuant to § 46-18-249, MCA. Bucher appeals.
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                                STANDARD OF REVIEW

¶9     We review for correctness a district court’s interpretation and application of statutes.

Kulstad v. Maniaci, 2009 MT 403, ¶ 6, 353 Mont. 467, 221 P.3d 127.

                                       DISCUSSION

¶10    Did the District Court improperly deny interest to Bucher on Hughes’s restitution

obligation imposed as part of a criminal judgment?

¶11    Bucher argues that the District Court’s civil judgment deprives him of “substantial

interest which should have begun to accrue on the date of sentencing in June 2003.” Bucher

contends that § 46-18-249, MCA, “requires” the District Court to include the total original

amount of the restitution order in the civil judgment—so that Bucher can be awarded interest

on the full amount of restitution—even if Hughes already has made substantial payments

toward his restitution obligation.

¶12    Section 46-18-249, MCA, provides that the total amount “that a court orders to be

paid to a victim may be treated as a civil judgment against the offender.” (Emphasis added.)

Section 46-18-249(1), MCA, requires only that the amount that a district court chooses to

order to be paid to a victim may be converted to a civil judgment. Nothing in the statute

requires a court to impose the total original amount imposed in a restitution order after a

defendant already has made payments for several years. Such a requirement would distort

the statute’s purpose.

¶13    Section 46-18-249(3), MCA, contains an offset provision. The statute requires that

any restitution paid by the offender to the victim under a restitution order contained in a
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criminal sentence “must be set off against any pecuniary loss awarded to the victim in a

separate civil action.” To require the District Court to impose a civil judgment in the

original amount of $37,133.70 would force Hughes to pay double what he had paid already

to Bucher over a period of six years.

¶14    As noted by the District Court, Bucher had the right to seek a civil judgment against

Hughes at any time. A civil judgment would have provided for accrued interest under the

provisions of §§ 27-1-210, -211, MCA. Bucher did not choose to pursue a civil judgment

against Hughes. Bucher instead accepted restitution payments as part of the criminal

judgment for six years.

¶15    More importantly, nothing in the sentencing and judgment provisions of Title 46,

Chapter 18, requires a district court to impose interest on a restitution order contained in a

criminal sentence. This Court upheld a district court’s imposition of a 10% interest rate on a

restitution obligation in State v. Brewer, 1999 MT 269, ¶ 32, 296 Mont. 453, 989 P.2d 407.

The district court in Brewer chose to impose the interest on the restitution order at the time

of sentencing. Brewer, ¶ 5. The District Court here imposed no interest requirement on

Hughes’s restitution obligation in the criminal judgment.

¶16    Nothing in § 46-18-249, MCA, requires the District Court to impose interest. The

choice to impose interest rests with the discretion of the District Court. Brewer, ¶ 32.

Further, nothing prevented Bucher immediately from seeking to convert the restitution

requirement to a civil judgment against Hughes that properly would have protected Bucher’s



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monetary concern over interest. The District Court correctly interpreted its obligations and

exercised its discretion under the statutes.

¶17    Affirmed.

                                                   /S/ BRIAN MORRIS


We Concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE




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