                                          No. 01-209

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 30



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JERRY DANIELS, D.P.M.,

              Defendant and Appellant.




APPEAL FROM:         District Court of the First Judicial District,
                     In and for the County of Lewis and Clark, Cause No. BDC-99-246
                     The Honorable Jeffrey M. Sherlock, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Kevin E. Vainio, Butte, Montana

              For Respondent:

                     Mike McGrath, Montana Attorney General, Kathy Seeley and Barbara C.
                     Harris, Assistant Attorneys General, Helena, Montana



                                                       Submitted on Briefs: December 13, 2001

                                                                 Decided: February 25, 2003
Filed:



                     __________________________________________
                                       Clerk
Justice James C. Nelson delivered the Opinion of the Court.


¶1     A jury in the First Judicial District Court, Lewis and Clark County, found Jerry

Daniels, D.P.M., guilty of felony theft of public assistance, and the District Court entered

judgment against him. Daniels appeals. We affirm.

¶2     The issues are:

¶3     1. Whether Daniels was properly charged with theft under § 45-6-301(4), MCA.

¶4     2. Whether Daniels was properly charged and convicted under the definition of the
offense in effect at the time he committed the crime.

¶5     In November of 1999, the State of Montana charged Daniels, a podiatrist practicing

in Anaconda, Montana, with felony theft under § 45-6-301(4), MCA:

       A person commits the offense of theft when the person purposely or know-
       ingly obtains or exerts unauthorized control over any part of any public
       assistance provided under Title 52 or 53 by a state or county agency,
       regardless of the original source of assistance, by means of:
       (a) a knowingly false statement, representation, or impersonation; or
       (b) a fraudulent scheme or device.

At Daniels' October 2000 trial, the State presented evidence that between January of 1996

and June of 1999, Daniels billed a number of his Medicaid-eligible patients for custom

orthotic shoe inserts which he did not provide to the patients, but for which he claimed and

obtained Medicaid reimbursement.

¶6     The jury found Daniels guilty of theft and, as part of a special verdict form, that the

total amount Medicaid paid for the claims for which Daniels was guilty was over $500. The

District Court deferred imposition of sentence for six years and ordered Daniels to pay


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restitution of $10,587.26 to the Medicaid program and $4,955 to the court for witness costs.

Daniels appeals.

                                            Issue 1

¶7     Was Daniels properly charged with theft under § 45-6-301(4), MCA?

¶8     Daniels contends he should have been charged with Medicaid fraud under § 45-6-313,

MCA, instead of theft under § 45-6-301(4), MCA. He asserts § 45-6-301(4), MCA, applies

only to the theft of public assistance by recipients of those government benefits and argues

income received by a physician for services and medical items cannot be "public assistance."

¶9     Daniels asserts this issue must be analyzed in accordance with the rules of statutory

construction outlined in State ex rel. Holt v. District Court, 2000 MT 142, 300 Mont. 35, 3

P.3d 608. We disagree. As the dissent in Holt, ¶ 16, pointed out, the rules of construction

outlined in that case are superfluous when statutory language is plain on its face. If the intent

of the Legislature can be determined from the plain meaning of the words used, courts may

not go further and apply other means of construction. Spoonheim v. Norwest Bank Montana,

N.A. (1996), 277 Mont. 417, 420, 922 P.2d 528, 530.

¶10    Section 45-6-301(4), MCA, defines theft as purposely or knowingly obtaining

unauthorized control over "any part of any public assistance provided under Title 52 or 53."

Medicaid funds are part of public assistance provided under Title 53, MCA. See §§ 53-6-

101 through -805, MCA. We conclude the statutory language is broad enough on its face

to encompass obtaining or exerting unauthorized control over Medicaid funds.



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¶11    Daniels points out that § 45-6-313, MCA, covers Medicaid fraud. However, when

the facts of a case support a possible charge of more than one crime, the crime to be charged

is a matter of prosecutorial discretion. State v. Smaage (1996), 276 Mont. 94, 98, 915 P.2d

192, 194-95. We hold that Daniels was properly charged with theft under § 45-6-301(4),

MCA.

                                            Issue 2

¶12      Was Daniels properly charged and convicted under the definition of the offense
in effect at the time he committed the crime?

¶13    The 1999 Montana Legislature amended § 45-6-301(7)(a) and (b), MCA (1999), to

increase the threshold amount for felony theft from $500 to $1,000, with an effective date

of October 1, 1999. Daniels argues that because the jury found him guilty of theft of over

$500 in Medicaid funds, but made no finding that the value exceeded $1,000, he should be

sentenced only for a misdemeanor.

¶14    The State contends Daniels waived this argument by failing to present it to the District

Court and failing to offer an alternative verdict form to the court. Daniels replies that he was

not required to submit any verdict form, and his counsel would have done him a disservice

by failing to accept the State's verdict form which he believed allowed only for a misde-

meanor conviction. He points out that, at sentencing, he objected to being sentenced for a

felony. Under these circumstances, we will consider the issue.

¶15    Daniels relies on State v. Wilson (1996), 279 Mont. 34, 926 P.2d 712, in his argument

on this issue. In that case, we held that when a sentencing statute is repealed between the


                                               4
date a defendant commits an offense and the date the defendant is sentenced, the effect of

the repeal lessens or ameliorates the defendant's punishment and the repealer contains no

savings clause, the defendant is entitled to be sentenced according to the sentencing statute

in effect on the date of sentencing. Wilson, 279 Mont. at 40, 926 P.2d at 716.

¶16    Value is an element of the offense of felony theft, and must be proven to support the

charge. See State v. Furlong (1984), 213 Mont. 251, 255-56, 690 P.2d 986, 988. As a result,

when the 1999 Legislature increased the value required to support a charge of felony theft,

it changed the definition of the offense, not a sentencing statute. Therefore, Wilson does not

control.

¶17    Persons alleged to have committed criminal offenses must be charged with violating

the law in effect at the time the crime was committed. See State v. Cline (1976), 170 Mont.

520, 532, 555 P.2d 724, 732. Furthermore, a change in the definition of an offense does not

affect acts committed prior to the effective date. "The repeal of any law creating a criminal

offense does not constitute a bar to an indictment or information and the punishment of an

act already committed in violation of the law so repealed unless the intention to bar such

indictment or information and punishment is expressly declared in the repealing act."

Section 1-2-205, MCA. Although Daniels argues modification of the definition of felony

theft is distinguishable from repeal of the prior felony theft statute, he provides no support

for making a distinction between the effects of modification and repeal for this purpose.

¶18    We hold that Daniels was properly charged and convicted under the definition of the

offense of felony theft in effect at the time he committed the crime.

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¶19   Affirmed.


                              /S/ JAMES C. NELSON



We Concur:


/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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