97-363




                                                                       No. 97-363

                                    IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                      1998 MT 97N



                                                                STATE OF MONTANA,

                                                        Plaintiff and Respondent,

                                                                                v.

                                                                    JESSICA TODD,

                                                         Defendant and Appellant.



                 APPEAL FROM:                District Court of the Eighth Judicial District,
                                                     In and for the County of Cascade,
                                           The Honorable Thomas M. McKittrick, Judge presiding.



                                                               COUNSEL OF RECORD:

                                                                   For Appellant:

                                    Lawrence A. LaFountain, Great Falls, Montana

                                                                  For Respondent:

                   Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein,
                      Assistant Attorney General; Brant Light, Cascade County
                  Attorney, James Donahue,Deputy Cascade County Attorney, Great
                                           Falls, Montana




                                             Submitted on Briefs: March 12, 1998

                                                         Decided:            April 30, 1998
                                                                            Filed:

                                       __________________________________________


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                                                                               Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

¶1   Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996
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 by this Court.

¶2   In December 1995, Jessica Todd (Appellant) rolled her car.
Appellant's car was "totaled" and worth only $25 after the accident. A
Montana Highway Patrolman responded to the scene and called Guy Chilson,
owner of Tri-G's Towing and Repair (Chilson), to come and tow Appellant's
car. Chilson towed the car and stored it on his lot for approximately three
months. Chilson testified he was prevented from disposing of the car because
he was unable to obtain the title. On March 11, 1996, Appellant paid Chilson
$1250 for his services including $475 for the towing and cleanup of the
accident site, and $775 for the storage of her car. Appellant's check bounced.

¶3   On January 27, 1997, pursuant to a plea bargain agreement,                                                    Appellant
pled guilty to the charge of issuing a bad check. A sentencing                                                     hearing was
held on February 25, 1997. The Eighth Judicial District Court,                                                     Cascade
County, gave Appellant a one-year deferred sentence and imposed                                                    restitution
in the amount of $1275. This amount included $1250 for the bad                                                     check and
$25 for the insufficient funds fee that Chilson paid the bank.                                                     Appellant
appeals the restitution portion of her sentence. We affirm.

¶4   We review the imposition of a sentence for legality only. State v.
Richards (1997), 54 St. Rep. 1172, 1173,      Mont.     , 948 P.2d 240, 241.
The standard of review on sentence legality is whether the district court abused
its discretion. Richards, 948 P.2d at 241.

¶5   Appellant cites Draper v. Coombs (9th Cir. (Or.) 1986), 792 F.2d 915,
923, and argues that she should pay no restitution because her due process
rights were violated when Chilson, acting under color of state law, towed her
car and she was not given an opportunity to challenge this state action before
a neutral magistrate. Appellant failed to raise this argument at her sentencing
and, therefore, we decline to address it on appeal. State v. Woods (1997), 283
Mont. 359, 372, 942 P.2d 88, 96-97.

¶6   Appellant asserts that the restitution she is required to pay is overstated
by $775, the amount charged for storage, and that she should be required to
pay only $475 for the towing and $25 for the insufficient funds fee. Appellant
bases her assertion on several arguments, one of which pertains to Montana's
restitution statutes, §§ 46-18-241 and -243, MCA. The issue raised by this
argument is dispositive.


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¶7        Section 46-18-241(1), MCA, provides:
          As provided in 46-18-201, a sentencing court shall require an
          offender to make full restitution to any victim of the offense
          who has sustained pecuniary loss as a result of the offense . . .

Section 46-18-243(1)(a), MCA, defines "pecuniary loss" as the following:

          all special damages, but not general damages, substantiated by
          evidence in the record, that a person could recover against the
          offender in a civil action arising out of the facts or events
          constituting the offender's criminal activities . . . .

Appellant argues that the storage fee does not meet the definition of pecuniary
loss because (1) the storage resulted independently of the crime of writing a
bad check and, therefore, did not "arise out of the facts or events constituting
the offender's criminal activities"; and (2) Chilson suffered no loss because his
lot was not filled to capacity when Appellant's car was stored there.
Appellant's claims have no merit.

¶8   The fact that Chilson's lot was not filled to capacity during the storage
of Appellant's car is not relevant to the issue of whether Chilson suffered a
pecuniary loss. Chilson provided Appellant the services of towing and storing
her car. By writing a check for $1250, Appellant acknowledged and agreed
to pay for those services. Appellant's check bounced and she pled guilty to
the charge of issuing a bad check. Chilson suffered damages in the amount of
the check, $1250, and the insufficient funds fee assessed by the bank, $25.
Because these damages arose out of Appellant's crime of issuing a bad check,
the damages constitute Chilson's pecuniary loss. Section 46-18-243(1)(a),
MCA. Chilson suffered a pecuniary loss of $1275.

¶9   We hold the District Court did not abuse its discretion in ordering
Appellant to pay Chilson $1275 in restitution. Affirmed.

                                                             /S/       WILLIAM E. HUNT, SR.


We Concur:

/S/       J. A. TURNAGE
/S/       KARLA M. GRAY
/S/       TERRY N. TRIEWEILER
/S/       W. WILLIAM LEAPHART




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