                                      No. DA 06-0545

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 92N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JOHN JUMPER,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Eighth Judicial District,
                     In and For the County of Cascade, Cause No. BDC 2005-330,
                     Honorable Julie Macek, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jim Wheelis, Chief Appellate Defender, Joslyn Hunt,
                     Assistant Appellate Defender, Helena, Montana

              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Mark Mattioli,
                     Assistant Attorney General, Helena, Montana

                     Brant S. Light, Cascade County Attorney, Great Falls, Montana


                                                        Submitted on Briefs: March 21, 2007

                                                                      Decided: April 3, 2007

Filed:

                     __________________________________________
                                        Clerk
Justice James C. Nelson 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    John Jumper (Jumper) appeals from the District Court’s July 5, 2006 Judgment of

Conviction and Sentencing Order. In pertinent part, Jumper contends that the court erred

when it ordered him to pay restitution in the amount of $4,401.01 to Richard Hart (Hart).

¶3    This case arose out of an incident which occurred during the winter of 2004/2005.

Jumper stole a snowmobile trailer containing two snowmobiles, as well as eight

snowmobile suits, four helmets, a propane heater and two covers, from Hart’s residence

located in Great Falls, Montana. Jumper was charged with felony theft and alteration of

an identification number, a felony. After pleading guilty to theft, he appeared at a

sentencing hearing on June 30, 2006. Through counsel, Jumper contested the valuation

of a missing 1994 Yamaha 600 V-Max snowmobile.

¶4    At the hearing, Jumper presented figures from the 2006 National Automobile

Dealer’s Association (NADA) guide. The prosecution introduced figures from the 2004

NADA guide—the guide covering the year in which Jumper stole the snowmobiles from

Hart. The trial court heard testimony from witnesses for Jumper and for the State and,




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crediting the testimony of the State’s witness, Steve Kaste, a Yamaha snowmobile dealer,

ultimately determined that the appropriate value for the snowmobile was $2,500.00.

¶5     On appeal, Jumper argues that the cost of replacement of property is allowed as a

determination of value only if the market value cannot be satisfactorily ascertained. He

cites our decisions in State v. Martin, 2001 MT 83, 305 Mont. 123, 23 P.3d 216, and

State v. Ohms, 2002 MT 80, 309 Mont. 263, 46 P.3d 55. Jumper contends that the

NADA book value relied upon by the court did not provide a market value of the

snowmobile at the time and place it was stolen, but rather, was a national average retail

value and that because there was no testimony that the market value of the snowmobile

could not be satisfactorily determined, the District Court improperly used the replacement

cost and thus abused its discretion in determining the amount of restitution.

¶6     On the other hand, the State contends that its witnesses did estimate the market

value of the missing snowmobile at between $2,000.00 and $2,500.00.             The State

maintains that the court did not err because it used the very value—market value—for

which Jumper is now arguing. We agree.

¶7     The law pertaining to our standard of review of a trial court’s determination of the

amount of restitution is conflicting. For example, in State v. Workman, 2005 MT 22, 326

Mont. 1, 107 P.3d 462, we stated that in reviewing a district court’s findings of fact,

including the amount of restitution, our standard of review is whether those findings are

clearly erroneous. Workman, ¶ 9 (citing State v. Heath, 2004 MT 126, ¶ 13, 321 Mont.

280, ¶ 13, 90 P.3d 426, ¶ 13). However, in State v. Good, 2004 MT 296, 323 Mont. 378,

100 P.3d 644, we stated that determining the amount of restitution is a question of law,


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and that our standard of review of a district court’s conclusions of law is whether the

conclusions are correct. Good, ¶ 11 (citing State v. Mikesell, 2004 MT 146, ¶ 14, 321

Mont. 462, ¶ 14, 91 P.3d 1273, ¶ 14; State v. Pritchett, 2000 MT 261, ¶ 18, 302 Mont. 1,

¶ 18, 11 P.3d 539, ¶ 18).

¶8     Absent our resolving this inconsistency sua sponte in some other case, we urge the

Attorney General and the Appellate Defender to raise this issue and present argument as

to the proper standard of review. These conflicting standards of review notwithstanding,

however, we determine that this is not the appropriate case in which to clarify and settle

the law. As to the instant case, we conclude that under either standard of review, the

District Court properly determined the amount of restitution—$2,500.00—as being the

market value of the subject snowmobile.

¶9     Therefore, having reviewed the record in this matter, we have determined to

decide this case pursuant to Section I, Paragraph 3(d) of our 1996 internal operating rules,

as amended in 2003, which provides for memorandum opinions. It is manifest on the

face of the briefs and the record before us that the appeal is without merit because the

court’s findings of fact are supported by substantial evidence and are not clearly

erroneous, and because the legal issues are clearly controlled by settled Montana law

which the District Court correctly interpreted.

¶10    Accordingly, we affirm the District Court’s July 5, 2006 Judgment of Conviction

and Sentencing Order.


                                                  /S/ JAMES C. NELSON



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We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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