408 P.3d 510
Mont.2017Background
- On 11/10/2014 Justin Boyd Dodge, while driving under the influence of methamphetamine, struck a concrete block and a traffic signal control box in Kalispell, Montana.
- Dodge pleaded guilty to felony DUI; a presentence investigation report (PSI) recommended $14,438.44 restitution to the Montana Department of Transportation (MDT).
- The PSI included an MDT invoice and a ledger entry, both listing $14,438.44 in repair costs; neither document was sworn or signed under oath.
- At sentencing the State recommended restitution in that amount but presented no witness testimony; Dodge objected, citing § 46-18-242, MCA, which requires a victim affidavit describing pecuniary loss when a PSI is prepared.
- The District Court imposed the recommended sentence and restitution; Dodge appealed arguing the State failed to provide the required affidavit or testimony describing pecuniary loss.
- The Supreme Court reversed and remanded, holding restitution could not be imposed absent the sworn affidavit or testimonial evidence required by § 46-18-242, MCA, and ordered a new restitution hearing and resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution may be imposed based on unsworn business records attached to the PSI instead of a victim affidavit or testimony | State: Invoice and ledger are reliable business records; rules of evidence do not apply at sentencing so affidavit/testimony not required | Dodge: § 46-18-242 requires a sworn affidavit (when a PSI is prepared) or testimony; unsworn documents are insufficient and deny due process | Court: Reversed — § 46-18-242 requires an affidavit or testimony describing pecuniary loss; unsworn invoice/ledger were insufficient; remand for new restitution hearing |
Key Cases Cited
- State v. McMaster, 345 Mont. 172, 190 P.3d 302 (Mont. 2008) (affidavit requirement may be excused where victim offers sworn testimony at restitution hearing and defendant’s rights are protected)
- State v. Aragon, 374 Mont. 391, 321 P.3d 841 (Mont. 2014) (restitution grafts a civil remedy into criminal sentencing; statutory procedures must be followed)
- State v. Schaeffer, 374 Mont. 93, 321 P.3d 809 (Mont. 2014) (court must follow detailed statutory procedures before imposing restitution)
- McDermott v. Carie, 329 Mont. 295, 124 P.3d 168 (Mont. 2005) (oath requirement promotes reliability because the affiant may be held accountable for overstating costs)