Opinion
No. 03-505.
Submitted on Briefs April 28, 2004.
Decided December 28, 2004.
Appeal from the District Court of Gallatin County. Eighteenth Judicial District, Cause No. DC 2002-172. Honorable Mike Salvagni, Judge.
For Appellant: Christopher K. Williams, Attorney at Law, Bozeman.
For Respondent: Hon. Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena; Marty Lambert, Gallatin County Attorney; Todd Whipple, Ashley Harrington, Deputy County Attorneys, Bozeman.
¶ 1 Dawnette Eaton ("Eaton") appeals from the sentence imposed by the Eighteenth Judicial District Court, Gallatin County, whereby she was convicted of felony forgery and ordered to pay restitution. We affirm.
¶ 2 The sole issue on appeal is whether the District Court erred in ordering Eaton to pay restitution as part of her suspended sentence.
¶ 3 On June 13, 2002, the State charged Eaton with forgery, by use of a common scheme, a felony. On April 2, 2003, Eaton pled guilty to felony forgery in violation of § 45-6-325, MCA (1999). On May 12, 2003, the District Court sentenced Eaton to the Department of Corrections for 10 years with 8 years suspended. As a condition of her suspended sentence, Eaton was ordered to pay restitution in the amount of $4,205.66, plus fees in the amount of $470, in monthly installments of $100 starting sixty days from her release from custody. Eaton appeals the order that she pay restitution as a condition of her suspended sentence.
¶ 4 This Court reviews a district court's imposition of sentence for legality only (whether the sentence is within the parameters provided by statute). State v. Eaton, 2004 MT 283, ¶ 11, 323 Mont. 287, ¶ 11, 99 P.3d 661, ¶ 11.
¶ 5 Eaton contends the District Court was without statutory authority to impose restitution as a condition of her suspended sentence under the 1999 amendments to § 46-18-201, MCA. Relying on a footnote in State v. Horton, 2001 MT 100, ¶ 28 n. 3, 305 Mont. 242, ¶ 28 n. 3, 25 P.3d 886, ¶ 28 n. 3, abrogated on other grounds by Eaton, ¶ 11, she argues after October 1, 1999, the effective date of the 1999 statutory amendments, a district court could only require restitution in cases in which it imposed a deferred sentence and thus a court could not require restitution in cases in which it imposed a suspended sentence. In this case Eaton was ineligible to receive a deferred sentence since she had previous felony convictions. See § 46-18-201(1)(b), MCA. Thus, the District Court suspended a portion of Eaton's sentence and imposed a condition that she pay restitution. Eaton now urges this Court to reverse the District Court and vacate the judgment as it applies to restitution.
¶ 6 Eaton raises the same issue this Court recently addressed in Eaton, ¶¶ 15-17, and State v. Heath, 2004 MT 126, 321 Mont. 280, 90 P.3d 426. In Heath, ¶ 16, we held an error was made in codifying the 1999 legislative amendments to § 46-18-201, MCA, "which was not intended to make any change in the substance or effect [of § 46-18-201, MCA (1997)]," requiring restitution when the district court imposed either a deferred or suspended sentence. The result is the same in this case as in Heath; the District Court did not exceed its statutory authority in ordering Eaton to pay restitution as a condition of her suspended sentence.
¶ 7 We affirm the judgment of the District Court.
JUSTICES LEAPHART, COTTER, REGNIER and RICE concur.