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                                                                No. 98-327

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              1999 MT 327N



STATE OF MONTANA,

Plaintiff and Respondent,

v.

TERRI HUMPHREY,

Defendant and Appellant.




                                                          APPEAL FROM: District Court of the Thirteenth Judicial
                                                          District,

In and for the County of Yellowstone,

The Honorable Russell L. Fagg, Judge presiding.




COUNSEL OF RECORD:

For Appellant:

Mark Hilario, Attorney at Law, Billings, Montana

For Respondent:

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Hon. Joseph P. Mazurek, Attorney General; Patricia Jordan,

Assistant Attorney General; Helena, Montana

Dennis Paxinos, Yellowstone County Attorney; Margaret Gallagher,

Deputy Yellowstone County Attorney, Billings, Montana




Submitted on Briefs: December 9, 1999

Decided: December 22, 1999

Filed:




__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.



      1. ¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
         Operating Rules, the following decision shall not be cited as precedent but shall be
         filed as a public document with the Clerk of the Supreme Court and shall be
         reported by case title, Supreme Court cause number and result to the State Reporter
         Publishing Company and to West Group in the quarterly table of noncitable cases
         issued by this Court.
      2. ¶ Appellant Terri Humphrey (Humphrey) appeals from the written judgment of the
         Thirteenth Judicial District Court, Yellowstone County, as being in conflict with the
         oral pronouncement of sentence. We reverse and remand.
      3. ¶ The sole issue on appeal is whether the District Court’s oral pronouncement of


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       sentence, which did not include restitution, controls over the written judgment,
       which included restitution, and thus constitutes the final judgment.

                                                            Standard of Review

     4. ¶ Humphrey's challenge to the District Court's sentencing order involves a question
       of law. We review questions of law de novo. State v. Waters, 1999 MT 229, ¶ 14,
       987 P.2d 1142, ¶ 14, 56 St.Rep. 901, ¶ 14.

                                                         Procedural Background

     5. ¶ Humphrey was charged in DC 98-229 in Yellowstone County with two counts of
        felony theft, two counts of misdemeanor theft, and one count of falsification to
        authorities. She entered pleas of guilty to the offenses as charged. The District Court
        ordered a presentence investigation report (PSI) and set pronouncement of
        judgment. The PSI included the victims' impact and loss statements for the crimes
        alleged to have been committed by Humphrey. The probation officer recommended
        a term of imprisonment and numerous conditions including restitution in the event
        Humphrey were eventually paroled.
     6. ¶ At the sentencing hearing, the deputy county attorney orally corrected the PSI with
        regard to the total restitution for all offenses, but did not enumerate restitution for
        DC 98-229. Counsel for Humphrey suggested that the defense and the State meet to
        reexamine the restitution to make sure they could agree on a figure. The record does
        not reflect whether the parties ever agreed on an amount of restitution.
     7. ¶ The District Court orally sentenced Humphrey in four different cases, including
        DC 98-229, to a total of eight years at the Montana Women’s Prison. The court
        stated, "[i]f any of that time is placed on community supervision, then the conditions
        as set forth in the presentence report would be a part of these conditions." The
        written judgment and commitment imposed restitution of $6,433.31 for all four
        criminal cases in the event Humphrey is paroled.

                                                                    Discussion

     8. ¶ Whether the District Court’s oral pronouncement of sentence, which did not
        include restitution, controls over the written judgment, which included restitution,
        and thus constitutes the final judgment.
     9. ¶ The State concedes that under State v. Lane, 1998 MT 76, 288 Mont. 286, 957


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      P.2d 9, the oral pronouncement of sentence controls. The State argues that the
      parties were all in agreement that restitution would be part of the sentence, that the
      amount of restitution imposed in the written judgment does not correspond to
      anything stated at the oral sentencing or to the contents of the PSI, that the oral
      pronouncement is thus ambiguous, and that the matter should therefore be remanded
      for resentencing.
  10. ¶ Having reviewed the record and the transcript of the sentencing, we determine that
      this is not a case of an ambiguity in the imposition of restitution. In Waters, we held
      that "where . . . a defendant was clearly put on notice of sentencing conditions and
      given a sufficient opportunity to respond to those conditions and ask for
      clarification, that defendant should not be heard to complain." Waters, ¶ 32. We
      agree with Humphrey that the District Court, despite some discussion of restitution,
      did not specifically impose a sentence of restitution in DC 98-229 at the oral
      pronouncement of sentence. The court's generic statement that "[i]f any of that time
      is placed on community supervision, then the conditions as set forth in the
      presentence report would be part of those conditions" was not sufficient to put
      Humphrey on notice of restitution with a meaningful opportunity to respond or seek
      clarification. As the State concedes, the amount of restitution imposed in the
      subsequent written judgment is not apparent from the sentencing transcript or from
      the PSI.
  11. ¶ When there is a discrepancy between the written judgment and the oral
      pronouncement of sentence, our decision in Lane clearly requires that the oral
      sentence controls. "After review of our statutory sentencing framework and mindful
      of the constitutional protections afforded criminal defendants, we now hold that the
      sentence orally pronounced from the bench in the presence of the defendant is the
      legally effective sentence and valid, final judgment." Lane, ¶ 40.
  12. ¶ We hold that the District Court did not, at the oral pronouncement of sentence,
      impose a sentence of restitution, that the oral pronouncement of sentence is the final
      judgment and that Humphrey is not subject to resentencing. Accordingly, this matter
      is remanded to the District Court for entry of a written judgment consistent with the
      oral pronouncement of sentence.

/S/ W. WILLIAM LEAPHART



We concur:

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/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER




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