                                      No. DA 06-0007

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 252N



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JERRY LEE KELLER,

              Defendant and Appellant.



APPEAL FROM:         The District Court of the Twenty-First Judicial District,
                     In and For the County of Ravalli, Cause No. DC-98-165,
                     Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

              For Appellant:

                     Jerry Lee Keller, pro se, Great Falls, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Jennifer Anders,
                     Assistant Attorney General, Helena, Montana

                     George H. Corn, County Attorney, Hamilton, Montana



                                                    Submitted on Briefs: September 13, 2006

                                                                 Decided: October 3, 2006

Filed:


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

¶1    Pursuant to Section I, Paragraph 3(d), 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    Jerry Lee Keller pled guilty to the felony offense of aggravated assault and the

misdemeanor offense of negligent endangerment as a result of an altercation with his

girlfriend occurring on October 30, 1998. On September 29, 1999, Keller was sentenced

to fifteen years imprisonment, with thirteen years suspended for the felony offense, and

one year in jail for the misdemeanor, to run concurrent. The conditions of the suspended

portion of the felony sentence included restitution to the victim in the amount of

$9,973.43, plus assessment of other costs and fees.

¶3    On October 29, 2000, Keller was discharged from the Montana State Prison. On

May 16, 2002, the State of Montana filed a petition to have Keller’s suspended sentence

revoked because he violated conditions of his suspended sentence. The District Court

entered a judgment reinstating the suspended sentence and adding another condition. On

May 13, 2004, the State filed a second petition to revoke Keller’s suspended sentence for

again violating conditions of the sentence. As a result, on October 27, 2004, the court

revoked Keller’s suspended sentence. He was sentenced to the Montana State Prison for

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thirteen years, less two years and three months of credit for time served in jail and on

probation.

¶4     On September 14, 2005, Keller filed a motion requesting the court to eliminate his

sentence provision requiring him to pay restitution. He argued that no statutory authority

existed which allowed the Department of Corrections to withhold a percentage of his

earnings for restitution. Further, he argued that pursuant to State v. Honey, 2005 MT 107,

327 Mont. 49, 112 P.3d 983, restitution can only be included as part of a suspended or

deferred sentence. The District Court treated the motion as a petition for postconviction

relief and ruled that the claims were procedurally barred. Alternatively, the court denied

relief on the merits. Keller appeals.

¶5     This Court reviews criminal sentences for legality only to determine whether the

sentence falls within the parameters set by statute. A district court's authority to impose a

sentence is defined and constrained by statute, and the court has no power to impose a

sentence in the absence of specific statutory authority. State v. Vernes, 2006 MT 32,

¶ 27, 331 Mont. 129, ¶ 27, 130 P.3d 169, ¶ 27 (citations omitted). Here, the District

Court interpreted and applied the appropriate statutes and case law to determine that

restitution was correctly imposed and that statutory authority existed, pursuant to § 46-

18-237, MCA (2003), to withhold a percentage of Keller’s income.

¶6     It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

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that the appeal is without merit because the legal issues are clearly controlled by settled

Montana law which the District Court correctly interpreted.

¶7    We affirm the judgment of the District Court.



                                                /S/ W. WILLIAM LEAPHART


We concur:

/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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