                                          No.    85-558

                I N THE SUPREME COURT OF THE STATE OF MONTANA

                                                1986




STATE OF MONTANA,

                 P l a i n t i f f and Respondent,

         -vs-
KIRT C. CARROLL,

                 Defendant and Appellant.




APPEAL FROM:     District Court o f t h e Eighth J u d i c i a l D i s t r i c t ,
                 I n and f o r t h e County o f Cascade,
                 The H o n o r a b l e J o e l R o t h , J u d g e p r e s i d i n g .


COUNSEL OF RECORD:


         For Appellant:

                 J o h n K e i t h , G r e a t F a l l s , Montana


         For Respondent:

                 Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                 J o e R. Roberts, A s s t . A t t y . General, Helena
                 P a t r i c k L. P a . u l , C o u n t y A t t o r n e y , Great F a l l s ,
                 Montana;        A n t o n ia P. Marra, Deputy County A t t o r n e y




                                                S u b m i t t e d on B r i e f s : Feb.   2 0 , 1986

                                                   Decided:         April 1, 1 9 8 6



Filed:
Mr. Justice Frank 5 Morrison, Jr. delivered the Opinion of
                   .
the Court.

     On July 2, 1985, defendant entered a plea of guilty to
the charge of felony theft, in violation of S 45-6-301, MCA
(1983).   On August 2, 1985, the district judge sentenced
defendant to five years in the Montana State Prison with the
last two years suspended.    Defendant appeals the sentence.
     The information filed in this case reveals that on the
evening of March 23, 1985, d-efendant unlawfully entered the
Medstar Towing garage in Great Falls, Montana, and stole
equipment and tools valued in excess of $300.   Defendant was
charged with felony burglary pursuant to S 45-6-204 (1), MCA
(1983), and felony theft, pursuant to S 45-6-301(1) (a), MCA
(1983).
     At his arraignment on July 2, 1985, defendant entered a
plea of guilty to the theft charge; the burglary charge was
dismissed under the terms of the plea agreement defendant
entered into with the county attorney.   Sentencing was sched-
uled for August 2, 1985.
     The pre-sentence report indicated that defendant was 20
years old, did not complete high school, had no job skills,
and had only slight income working part-time for his father.
Defendant's prior criminal record consisted of three misde-
meanor theft convictions.
     The sentence hearing was held August 2, 1985.     At the
hearing, defendant's counsel pointed out that although the
victim had been reimbursed in the amount of $16,000 by his
insurance company, defendant contended that the actual amount
of goods stolen amounted to about $6,484.43.
     The district judge sentenced defendant to five years in
the Montana State Prison with the last two years suspended.
Additionally, defendant was ordered to pay restitution in the
minimum amount of $6,484.43, or as much as he could pay
during the suspended sentence, to attend alcohol and drug
counseling during the suspended part of his sentence, and to
enroll in a GED program.     The district judge also recommended
defendant he transferred to the Swan River Forest Camp as
soon as space became available.     In the sentencing order, the
district judge noted:      "The value of the property stolen is
quite significant and it is questionable if restitution will
ever be paid in this case.    The Court concludes that a period
of incarceration is required in this case for the protection
of the property of other persons."
      On appeal, defendant raises the following issue:      Did
the District Court err when imposing the sentence by consid-
ering the inability of the appellant to pay restitution?
      Defendant asserts he was sentenced to a prison term
primarily due to his inability to pay restitution, which
violated his right to equal protection guaranteed by the
Fourteenth Amendment.    We disagree.
      An examination of the sentencing order and the tran-
script of the sentence hearing reveals no abuse of discretion
by   the district judge, nor any violations of defendant's
constitutional rights.      Section 45-6-301(5), MCA, provides
that a person convicted of felony theft shall not be fined in
excess of $50,000 nor imprisoned for a term exceeding 10
years.   Clearly, the sentence imposed in this case is well
within these parameters.      "This Court has consistently held
that if a sentence is within the Limits provided by statute,
it is not an abuse of discretion."       State v. Lemrnon (Mont.
19841, 692 P.2d 455, 41 St.Rep. 2359.
      Defendant argues he was      sentenced to a prison term
because of his indigency.      However, the district judge spe-
cifically noted the prison term was necessary to protect the
property of others, and     that defendant's criminal record
contained three   previous misdemeanor thefts.     These   are
sufficient reasons supporting incarceration and uphold this
state's correctional policy "to protect society by preventing
crime through punishment and rehabilitation of the convict-
ed."   Section 46-18-101, MCA.
       Defendant's argument taken to its logical end would
prohibit the State from imposing a prison term upon an indi-
gent defendant where restitution is arguably an alternative.
Such a result would essentially eliminate punishment for the
indigent defendant.    In this case, the district judge sen-
tenced defendant to a prison term to impress upon him that he
cannot continually violate the laws of this state and escape
incarceration.
       The conditions of the sentence given are designed to
deter future criminal conduct and rehabilitate defendant in
conformance with the correctional policy of the State of
Montana.   The District Court is affirmed.




We concur:
