STATE v FARRELL
Annotate this Case
Download PDF
No. 82-391 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983 STATE OF MONTANA, Plaintiff and Respondent, -vsSTEPHEN E. FARRELL, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Gordon R. Bennett, Judge presiding. COUNSEL OF PZCORD: For Appellant: Harlen, Thompson Helena, Montana & Parish; Shaun R. Thompson argued, For Respondent : Mike Greely, Attorney General, Helena, Montana James McLean argued, Asst. Atty. General, Helena Mike McGrath, County Attorney, Eelena, Montana - -- Submitted: Decided: Clerk September 29, 1983 January 17, 1984 Mr. Justice L.C. Gulbrandson delivered the Opinion of the Court. Appellant Stephen Farrell was convicted of theft of public assistance funds by a jury in the District Court of the First Judicial District, Lewis and Clark County. He has appealed both the conviction and his sentence to this Court. For the reasons stated below, we affirm the conviction, but vacate the sentence and remand for resentencing. The appellant was discharged from the United States Navy on December 17, 1979. After his discharge, appellant, his wife Margaret, and a step-daughter returned to his home town, Helena. Margaret was pregnant on the family's arrival in Helena, and because their finanical situation was precarious, the Farrells went to the Lewis and Clark County Welfare Department to apply for medical assistance and food stamps. At the time of the application they were told that they could apply for Aid to Families with Dependent Children (AFDC), which included Medicaid, as well as food stamps. A welfare worker cautioned them that they should report any change in financial circumstances. Based on their application of January 7, 1980, the Farrells were certified to receive AFDC benefits for a period of six months and food stamps for one month. During the period from March until May 1980, the appellant received a number of unemployment checks. The Farrells claim that this income was reported to the Welfare Department. Witnesses for the State, however, testified at his trial that they had no record of any such report. In early June, Farrell was advised that he would begin receiving veteran's benefit checks. On June 16, 1980, a check for $260.80 was mailed to him. The records cilstodian at Fort Harrison stated that Farrell should have received the check within six to ten days. Despite this, on June 27, which would have been the end of the ten-day period, the appellant reapplied for food stamps. In that application, he indicated he was not receiving any veterans' benefits. In July, Farrell uncle, Eugene L. Helena. began working part-time for his "Bud" Menth, at Capital Excavating, in He did not report the income received from this job to the Welfare Department, and he continued to receive full AFDC benefits and food stamps. AFDC checks and Authorization to Purchase Food Stamps (ATP) cards include statements to the effect that endorsing the checks or signing the cards amounts to an affirmation that the signer's financial condition has not changed, and that all information provided for eligibility is true. purposes of establishing Farrell's signature appeared on all the cards and checks issued to him. In late August, assistance. the Farrells again applied for That application did not reflect his income from Capital Excavating, benefits as income. and listed only his veterans' However, the Welfare Department was informed that Farrell was working and requested that he provide it with a statement of his earnings. He did so by presenting two notes from employer Bud Nenth setting out his wage rate and estimated hours. not great benefits. incorrect. enough to Menth's make the The amounts specified were appellant statements later ineligible for turned out to be At trial, the State, through Menth's bookkeeper, introduced a summary of Farrell's 1980 earnings which showed he had earned reflected, e.g., substantially more than the estimates July, $350; August, $920; September $1,260; October, $1,036; November, $560. Farrell was eventually charged with purposely or knowingly exerting unauthorized control over public assistance funds by knowingly making false statements to procure the funds, a violation of Section 45-6-301(4)(a), MCA. Farrell was also charged under Section 45-6-301(6) for procuring the funds on several separate occasions as part of a common scheme. guilty. He was tried before a jury, and was found The trial court sentenced Farrell to ten (10) years in prison, the service of that term being suspended upon "strict and complete adherence" to the following conditions: (1) that he make restitution of the welfare funds illegally obtained, or $3,864.03, and the required 25 percent penalty thereon, or $966.25; (2) that he reimburse the court for expenses incur red by his attorney up through sentencing, approximately $2000, and for any further legal expenses incurred, and to pay an additional ten percent interest on all reimbursements; and (3) that he undergo treatment for his alcohol problem. Farrell appeals from his conviction and those portions of his sentence concerning the number of years and the terms of restitution and recoupment of attorney fees. Specifically, he presents five issues: (1) Whether there was substantial evidence before the District Court and the jury to support the verdict, and whether the District Court erred in not granting appellant's motions to dismiss or for a directed verdict? (2) Whether the District Court erred in giving State's proposed instructions 9 and 12 (Court's 10 and 9) concerning the obligation of recipients of public assistance to report changes of income within ten days? (3) Whether the District Court committed reversible error by failing to instruct on the lesser included offense of misdemeanor theft? (4) Whether the District Court's judgment and sentence were improper consideration in that the the court failed appellant's financial to take into resources in ordering him to pay restitution, and to reimburse the County for the cost of his court-appointed attorney? (5) Whether the District Court violated appellant's constitutional right of equal protection by apparantly basing the length of his sentence on his economic status and earning ability? We treat Issues One and Two together, as they arise from substantially the same argument; i.e., that the appellant Farrell was somehow convicted of an offense for which he was not charged. The information filed by the county attorney indicates that Farrell was charged with a violation of Section 45-6-301(4)(a): knowingly purposely or obtaining or exerting unauthorized control over public assistance funds, by knowingly making false statements to the Lewis and Clark County Welfare Department. Farrell was also charged with having procured the funds over a period of months as part of a "common scheme." Section 45-6-301(6), MCA. At trial, the state produced evidence of false statements made by Farrell in three different contexts: (1) by applying for public assistance; (2) by endorsing five AFDC checks; and (3) by applying for food stamps. In addition, the State put forth evidence to show that Farrell had failed to notify welfare authorities of changes in his financial condition. The gravamen of Farrell's argument is that the State failed to produce substantial evidence of his ever making false statements to the welfare authorities. argues that the alleged failures to Moreover, he report changes in financial condition do not constitute the making of false statements. Because he was charged only with making false statements to obtain the funds, Farrell reasons that the charges against him should have been dismissed. In the alternative, Farrell argues for a new trial on the basis that Jury Instructions 9 and 10, when read together, instructed the jury that Farrell could be found guilty for failing to report changes in his eligibility to receive public assistance. Because Farrell was not charged with this offense, the instructions are to be deemed improper for this particular case. We agree with the appellant Farrell that the failure to report changes in financial condition does not constitute the making of "false statements" within the scope of Section 45-6-301(4)(a). omission,^^ requires." The failure to report is in the nature of an i.e., " [tlhe neglect to perform what the law Black's Law Dictionary 979 (5th ed. 1979). If Farrell had been charged under subsection (b) of Section 45-6-301(4), MCA--theft of public assistance funds by "fraudulent scheme or device,"--the omissions would been sufficient to constitute a crime. (1952), 173 Kan. 107, 244 P.2d 176. a have See State v. Allison Nevertheless, the failure to charge Farrell for not reporting changes in his financial condition does not warrant conviction. of reversal his We find substantial credible evidence of false statements made by Farrell to obtain welfare assistance. For example, Farrell endorsed several AFDC checks, and in so doing, affirmed that his eligibility status had not changed and that prior status was information submitted true. affirmations on These the are original to determine "statements," application this as are the forms and ATP cards, and evidence produced by the State at trial tended to prove that these statements were false. Farrell was undoubtedly receiving enough outside income so as to render him ineligible for the sums he received. It is of no consequence to this appeal that many of the "statements" were in effect made to state agencies, and not the county welfare department, which was the only entity mentioned in the information. That there was evidence of false statements made to obtain the welfare assistance was legally sufficient to convict him of theft under Section 45-6-301(4)(a). Thus, the trial court did not err by failing to grant appellant's motions to dismiss or for a directed verdict. Similarly, the rendering of Instructions No. 9 and 10 was not prejudicial to defendant's case. instructed on the elements of 45-6-301(4) (a) and on therefore had an The jury was properly theft outlined in Section the concept of common scheme, and acceptable legal consider the available evidence. basis upon which to Where jury instructions, taken as a whole, state the law applicable to a case, a party cannot claim reversible error as to giving of certain instructions. Goodnough v. State (Mont. 1982), 647 P.2d Appellant's third issue on appeal is whether the District Court erred by failing to instruct the jury on the lesser included offense of misdemeanor theft. In State v, Kyle (Mont. 1980), 628 P.2d 260, 263, 37 St.Rep. 1447, 1451, we held that: .. the defendant is entitled to an intruction on a lesser included offense if the evidence would enable the jury rationally to find him guilty of a lesser offense and to acquit him of the greater. Keeble v. United States (1973), 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844, 847; State v. Bouslaugh (1978), Mont., 576 P.2d 261, 263, 35 St.Rep. 319. But this Court had held that the District Court will not be put in error for refusing to instruct as to the lesser included offense, if the evidence is such to show that the defendant is either guilty of the offense charged or entitled to an acquittal. Bouslaugh, supra, Mont., 576 P.2d at 263, State v. McDonald (1915), 51 Mont. 1, 16, 149 P. 279, 285." It. All the evidence, with the exception of some minor references made to small medical bills by a State witness during the State's unsuccessful attempt to introduce an exhibit on medical overpayments, shows that all the amounts received by Farrell were over $150. Looking at this record as a whole, we find that a rational trier of fact could not have found Farrell guilty of misdemeanor theft, based solely on these minor references to small medical payments. The instruction on lesser offense was properly refused. Appellant's fourth issue goes to the Court's consideration of his financial condition when ordering restitution of amounts illegally procured from public authorities and requiring recoupment of legal fees expended in his defense and subsequent legal action on his behalf, including this appeal. He insists that the trial court did not pay heed to provisions in statute and in case law concerning an indigent defendant's financial ability to make restitution or provide reimbursement of legal fees. We first examine the recoupment problem. The standards for reimbursement of attorney fees are set out in Section 46-8-113, MCA: "(2) Costs must be limited to reasonable compensation and costs incurred by the cour t-appointed counsel in the cr imina.1 proceeding. Costs may not include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law. The court may not sentence a "(3) defendant to pay the cost ............................. s o f c o u r t - a .......................... ------- ~ p o i n t e d c o u n s e l u n l e s s t h e defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose. "(4) A defendant who has been sentenced to pay costs and who is not in contumacious default in the payment thereof may at any time petition the court that sentenced him for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or his immediate family, the court may remit all or part of the amount due in costs or modify the method of payment." (emphasis added ) Provisions similar to the above have been recognized by the United States constitutional Supreme Court principles availability of legal counsel. U.S. 40, 94 S.Ct. of as permissible equal protection under and Fuller v. Oregon (1974), 417 2116, 40 L.Ed.2d 642. Therefore, we reject inferences by the appellant that so-called "strong public policy reasons" should convince this Court to eliminate the practice of reimbursement for the costs of counsel. However, we find nothing in the transcript of record or in the judgment of the trial court to indicate how or if the court took cognizance of appellant's financial resources and the burden that recoupment would impose on him. The judgment cannot stand without a meaningful inquiry into the appellant's financial status and a subsequent finding of the record that he has sufficient resources to repay costs of legal counsel. 1978), 569 F.2d See United States 1194, 1197-98. v. Eracewell (2d.Cir. In conducting an inquiry and reaching a conclusion, the trial court "need not permit a full-fledged adverarial inquiry into the nature and amount of a defendant's assets; nor need he become involved in determining priorities to these assests. [However,] any defenses to payment asserted by a defendant be fully considered." ... . . . should Bracewell, supra, at 1200. That portion of the judgment concerning restitution is also suspect. public policy Restitution by of 46-18-201(l)(a)(iv), presented this itself is the state, MCA, see, and arguments no e.g., recognized Section have been to the effect that requiring restitution is impermissible. Nevertheless, we have required the district courts to take into consideration a defendant's ability to make restitution, including a review of the defendant's financial resources and any burdens imposed by repayment. State v. Morgan (Mont. 1982), 646 P.2d St.Rep. 1072, 1080-81. The mandate 1177, 1183-84, 39 of Morgan was not a d h e r e d t o by t h e t r i a l c o u r t i n t h e i m m e d i a t e c a s e . Under t h e c i r c u m s t a n c e s , v a c a t i o n o f t h e s e n t e n c e and a remand f o r new p r o c e e d i n g s a r e i n o r d e r . court must, facts to show Farrellls its w r i t t e n in compliance" financial restitution. See Because F o l l o w i n g Morgan, findings, the t r i a l "include sufficient respecting with the conditions condition and his Morgan, appellant's supra, fifth 646 issue a b i l i t y t o make P.2d for at 1184, review is c o n n e c t e d t o s e n t e n c i n g e r r o r s , w e c o n s i d e r it h e r e . issue goes to the ( s u s p e n d e d ) , and based. The length of his sentence, i t was t h e g r o u n d s upon w h i c h following excerpt ten from the 39 also This years allegedly sentencing t r a n s c r i p t , i n c l u d i n g a c o l l o q u y b e t w e e n t h e t r i a l j u d g e and the appellant, apparantly illustrates the only factors r e l e v a n t t o d e t e r m i n a t i o n of F a r r e l l ' s s e n t e n c e : "THE COURT: Very w e l l . You d o h a v e o n e p l u s on y o u r r e c o r d , and t h a t i s t h a t you h a v e s e r v e d h o n o r a b l y i n t h e armed f o r c e s . O t h e r t h a n t h a t , I d o n ' t see a n y very g r e a t saving f e a t u r e s here. The f a c t t h a t you h a v e n ' t b e e n c o n v i c t e d b e f o r e h a s t o be balanced w i t h t h e f a c t t h i s i s n o t a s i n g l e o f f e n s e ; t h i s was o f f e n s e a f t e r o f f e n s e f o r some s e v e n , W e i n t e n d by o u r e i g h t , n i n e months. s e n t e n c e t o r e c o v e r f u l l y t h e amount t h a t you owe t h e S t a t e ; n o t o n l y f o r t h e money t h a t you s e c u r e d i l l e g a l l y f r o m SRS a n d t h e Welfare Department of t h i s county, b u t a l s o f o r t h e amount o f money t h e S t a t e h a s l a i d o u t f o r your a t t o r n e y . " I t l o o k s v e r y much l i k e b e f o r e t h i s i s a l l o u t t h a t y o u ' r e probably going t o pay e i g h t t o n i n e thousand d o l l a r s . That i s n ' t g o i n g t o be f o r t h c o m i n g i n your l i f e i n the near f u t u r e , c e r t a i n l y not w i t h i n t h r e e y e a r s , and you w o u l d ' t e v e n p r e t e n d t o m e t h a t you c o u l d make t h a t amount o f money c l e a r i n t h r e e y e a r s . That's correct, i s n ' t i t ? "THE DEFENDANT: I really don't know. I wouldn't economy. think it. depends It on the "THE COURT: Well, i t d e p e n d s on two t h i n g s ; i t d e p e n d s on t h e economy, and i t d e p e n d s on y o u r s o b r i e t y . "THE DEFENDANT: Y e s , sir. "THE COURT: R i g h t . Rut t h e p o s s i b i l i t y of your doing t h a t i n t h r e e y e a r s is p r e t t y small. You'd h a v e t o a g r e e w i t h that. "THE DEFENDANT: I d o n ' t know, sir. I d o n ' t e i t h e r , and w e ' l l t a k e t h a t i n t o consideration i n sentencing. You've n e v e r made t h a t amount o f money c l e a r b e f o r e , h a v e y o u , i n you l i f e ? THE COURT: No, s i r , I h a v e n ' t "THE DEFENDANT: "THE C O U R T : A l l right. I t ' s a new e x p e r i e n c e . Because of t h e n e c e s s i t y f o r considerable t i m e , I t h i n k you can s u c c e e d i f you s t a y s o b e r , and I t h i n k you c a n p a y t h e d e b t , b u t I d o n ' t t h i n k you c a n d o i t i n much l e s s t h a n t e n y e a r s , and f o r t h a t r e a s o n we're g o i n g t o impose a s e n t e n c e o f t e n y e a r s a t Montana S t a t e P r i s o n and suspend i t i n i t s entirety . . ." From the preceding t h a t h i s sentence--the S e c t i o n 45-6-301(5), colloquy, appellant is c o n v i n c e d maximum a l l o w e d u n d e r s t a t e l a w , see MCA--was b a s e d o n l y upon h i s i n d i g e n c y and was t h u s v i o l a t i v e o f h i s r i g h t t o e q u a l p r o t e c t i o n o f the law. Strangely enough, rebuttal t o appellant's our review sentence of is the State has avoided argument on t h i s a p p e a l . transcript, probably the we irnpermissable, p r i n c i p l e s of d u e p r o c e s s , find that although any Based o n appellant's we rely on a s opposed t o e q u a l p r o t e c t i o n , i n reaching t h i s conclusion. Appellant U.S. 12, 76 r e l i e s on G r i f f i n v. S.Ct. 585, 100 L.Ed. Illinois (1956), 891 the for 351 general proposition t h a t discrimination against criminal defendants on the basis of economic status is prohibited by the equal protection clause of the fourteenth amendment. In Griffin, the United States Supreme Court held that a state could not deny appellate review of a criminal conviction merely because the defendants seeking the appeal lacked funds to purchase a transcript of lower court proceedings. The plurality opinion of Justice Black suggests that both equal protection and due process: "call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system--all people charged with crime must so far as the law is concerned, 'stand on an equality before the bar of justice in every American court.' Chambers v. Florida, 309 U.S. 227, 241. See also Yick Wo v. Hopkins, 118 U.S. 356, 369." (opinion of Black, J.). In recent years, as the courts have had an opportunity to consider Griffin in the context of sentencing, greater emphasis has been placed on equal protection in evaluating and, in some cases, invalidating certain sentencing procedures. (1971), 401 U.S. See, e.g., 395, 9 1 S.Ct. (violation of equal protection 668, Tate v. Short 38 L.Ed.2d 130 to limit punishment to payment of fine for those able to pay but to convert fine to imprisonment for those unable to pay); Williams v. Illinois (1970), 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (violation of equal protection to subject certain class of criminal defendants to a period of imprisonment beyond the statutory maximum solely by reason of indigency); Monsour v. Gray (E.D.Wisc. clause 1973), 375 F.Supp. proscribed absolute bar 786 to (equal protection consideration of pre-conviction custody occasioned solely by financial inability to make bail in determining term of imprisonment to be served on conviction). See generally P. Polyviou, The Equal Protection of the Laws 522-35 (1982). Recently, however, the United States Supreme Court apparantly has taken a cue from the late Justice Harlan, and concluded that due process, not equal protection, is the proper tool for guaging the constitutionality of sentencing procedures. This shift is most evident in the analysis in Bearden v. Georgia (1983), 76 L.Ed.2d 221, a case dealing with restitution order. , U.S. The Court's 103 S.Ct. 2064, the validity of a analysis incorporates in large part the views first expressed by Justice Harlan in his concurring opinion in Williams v. Illinois, supra. In Bearden, Justice OIConnor, writing for a majority, renewed the observation from Griffin that "[dlue process and equal protection analysis" in defendants. at 228. Court principles most cases converge involving Bearden, supra, 103 S.Ct. in the indigent Court's criminal at 2068, 76 L.Ed.2d Despite the past emphasis on equal protection, the indicated that a "due process" analysis was without support: "Justice Harlan in particular has insisted that a due process approach more accurately captures the competing concerns. See e.g., Griffin v. Illinois, 351 U.S. at 29-39, 76 S.Ct., at 595-600 (Harlan, J., dissenting); Williams v. Illinois, 399 U.S. 235, 259-266, 90 S.Ct. 2018, 2031-34 , 26 L.Ed.2d 5 86 (1970)(Harlan, J., concurring). As we recosnized in Ross v. Moffitt, 417 U.S., q --__---a l l y........................ e f a i r n e s s o f ener analyze th relations between the criminal defendant and the S t a t e under the D u e Process ................................... Clause, while we approach the question whether the State has invidiously denied - not one class of defendants a substantial benefit available to another class of -----------defendants under the Equal Protection -----------Clause. " 103 S.Ct. at 2068-69, 76 L.Ed. 2d at 228 (emphasis added). Arguably, the Court now fundamental procedural recognizes that the fairness, as embodied concept of in the Due Process Clause, has an important if not overriding role to play in the evaluation of sentencing procedure: ... "To determine whether differential treatment violates the Equal Protection Clause, one must determine whether, and under what circumstances, a defendant's indigent status may be considered in [ , for example,] the decision whether to revoke probation. This is substantially similar to asking directly the due process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine. Whether analyzed in terms of equal protection or due process, the issue cannot be resolved by resort to easy slogans or pigeonhole analysis, but rather requires a careful inquiry into such factors as 'the nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose I Williams v. Illinois, supra, 399 U.S., at 260, 90 S.Ct., at 2031 (Harlan, J., concurring)." .... In a footnote, the Court indicated a preference for the due process approach: "A due process approach has the advantage in this context of directly confronting the intertwined question of the role that a defendant's financial background can play in determining an appropriate sentence. When the court is initially considering what sentence to impose, a defendant's level of financial resources is a point on a spectrum rather than a classification. Since indigency in this context is a relative term rather than a classification, fitting 'the problem of his case into an equal protection framework is a task too Procrustean to be rationaly accomplished,' North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656 (1969). The more aEproEriate g ------- is whether ------ --- ------ u e s t i o n consideration of a defendant's financial backqround in setting or resetting a ---- .................... sentence is so arbitrary or unfair as to be a denial of due process." 103 S.Ct. added). for at 2069 n. 8, 76 L.Ed.2d at 229 n. 8. (emphasis We adopt this method of analysis as most suitable evaluating the sentencing procedure. constitutionality As Justice of a particular Harlan warned in his concurring opinion in Williams, supra, the implications of subjecting sentencing procedures to scrutiny under the equal protection clause are ultimately impractical and disastrous: "[Equal protection] would require that the consequences of punishment be comparable for all individuals; the State would be forced to embark on the impossible task of developing a system of individualized fines, so that the total disutility of the entire fine, or the marginal disutility of the last dollar taken, would be the same for all individuals." Williams, supra, 399 U.S. L.Ed.2d at 261, 90 S.Ct. at 604, (Harlen, J., concurring). at 2052, 26 Due process, on the other hand, shifts the focus from the unsettling nature of "equalization" to the more manageable principle of rationality or reasonableness. 2031, 26 L.Ed. 2d at 603. 399 U.S. at 260, 90 S.Ct. at Thus, we assess the legality of an indigent defendant's sentence in light of fundamental fairness, implicitly recognizing the presumption in favor of individual liberty protected by the Due Process Clause. In the instant case, we believe the appellant's due process rights may have been violated. We grant the State a valid penological interest in seeking punishment, including the requirement of restitution and recognize that a maximum otherwise, may, punishment. in this in recoupment. We also ten-year sentence, suspended or certain instances, be acceptable as Nevertheless, we think it arbitrary and unfair case to subject the appellant to the maximum sentence simply because of an apparantly unsupported notion that he may not be able to make good on the recoupment and restitution within ten years. Considering the lack of findings regarding appellant's financial resources and his ability to reimburse the proper authorities, we think the judgment of the trial court should be reconsidered. The record indicates that indigency may have been the criterion for imposing the sentence in this particular case, and we therefore view the sentence in this instance as a possible infringement upon fundamental fairness. 103 S.Ct. at 2072, 76 L.Ed.2d Cf. Bearden, supra, at 232 (due process offended when criminal defendant's probation is revoked solely because of indigency, especially when defendant has not been given an opportunity to complete requirements of restitution). We do not say that the appellant in the immediate case may not, under appropriate circumstances, be subjected to the maximum sentence available in law. (state may Cf. Bearden, supra revoke probation of indigent defendant and imprison him for failure to make bona fide efforts to pay fines and make restitution). indigency or poverty not be Due process requires only that used as the touchstone for imposing the maximum allowable punishment. Upon remand, the trial court is free to reconsider the possibility of a ten year suspended sentence, but only upon grounds which give fair consideration to Farrell's financial condition. In reaching this decision, we reject arguments by the State that the provisions of appellant's sentence, especially with respect to requirements of restitution and recoupment, are not ripe for review because there is as yet no concrete evidence of any hardships. misconceive the nature of this appeal. These arguments Farrell is attacking the underlying validity of his sentence, and as such, his appeal is properly before this Court. State ex rel. Greely v. District Court (1979), 180 Mont. 317, 327, 590 P.2d 1104, 1110; State v. Simtob (1969), 154 Mont. 286, 288, 462 P.2d 873, 874. The conviction of Stephen Farrell is affirmed. sentence is vacated, and the case is resentencing in accordance with this opinion. fr,& Justice We concur: ;t,&JP a.m+ Chief Justice ~ i s t r i c tJudge, sitting in place of Mr. Justice Frank B. Morrison, Jr. Justice -18- remanded The for Justice John C. Sheehy dissenting: It is an eccentric view of the law to recognize that recoupment of fraudulently acquired public moneys is a good thing, and yet to hold the District Court in error for stretching out a suspended sentence to make recoupment possible. It is more eccentric to hold that the suspended sentence must be set aside, not on equal protection grounds, but upon lack of due process. Here the District Court, balancing the propriety of recoupment for offense after offense, and the inability of defendant to pay within three years, simply stretched out the period to make payment by the Defendant feasible. Due process means fundamental fairness. Fundamen- tally, the District Court was eminently fair to the Defendant, in not assessing jail time which he richly deserved, and providing instead for recoupment within the term and ability of the Defendant to pay. Certainly, the District Judge here tried to ascertain the earning ability of the Defendant. really don't know." The replies were "I It is now remanded to find if defendant really, really did not know. This case does not involve sending a Defendant to jail because his indigency prevented the collection of a fine, as was involved in most of the cases relied on by the majority. It involves instead a humane and compassionate approach by a District Judge to accommodate the earning ability of the Defendant, and yet to protect the public's right to recoup- ment, and without jail time. If that is fundamentally unfair, our system of law is skewed. I dissent. I would affirm the District Court in all respects. Justdce Mr. Justice Daniel J. Shea dissents and will file a written dissent later. DISSENT OF MR. JUSTICE DANIEL J. SHEA No. 82-391 STATE V. FARRELL Dated: L, / 9 8 5 STATE OF MONTANA Mr. J-usticeDaniel J. Shea, dissenting: I dissent. The instructions given to the jury in this case were contradictory and confusing. The majority has ignored the law governing conflicting jury instructions. iury was not only instructed on common The scheme, it was instructed on another legal theory having no support in the evidence. But the majority ignores the problem created by simply stating that "the jury was properly instructed on the . . . and elements of theft on the concept of common scheme, and therefore had an acceptable legal basis upon which to consider the available evidence." turn our back on due But acceptable only if we process issues that inhere in coizflicting jury instructions or in legal theories where all. are not supported by substantial evidence. It may very well be true, that in some instances, where jury instructions, taken as a whole, state the law applicable to a case, a party cannot claim reversible error as to the giving of certain instructions. Goodnough v. State (Mont. 1-982), 647 P.2d 364, 39 St.Rep 1170. Eut the test of a jury instruction is not what the ingenuity of counsel can make of it, but rather the ordinary understanding of the instructions taken as a whole. Brothers v. Surplus Tractor Corporation (1973), 161 Mont. 412, 506 P.2d 1362. Parts In that case we reversed and remanded for a new trial because the instructions were inconsistent and contradictory to each other to a degree that would confuse the average iuryman. Nor should the test of an instruction be what this Court on review can make of it. The jury may very well wend its way through a maze of evidence and instructions, assuming they are all reconcilable, not realizing that certain instructions are contradictory, and not realizing the verdic-iz was tempered by that contradiction. In McCullough v. Beech Aircraft Corp. (5th ~ i r .1979), 587 F . 2 d District 754, 759, the court remanded. the case because the Court instructions committed which reversible effectively removed error in giving from the jury ' s consideration a necessary theory upon which it could have found liability: "If the charge as a whole leaves us with subst.a.ntia1and ineradicable doubt whether the jury has been proper1.y guided in its deliberations it cannot stand. (Citations omitted. ) "In this case, the district court's jury charges was contradictory and may well have caused the jurors to misunderstand the issues presented to them for resolution." And in State v. Na.peahi (Kawaii 1976), 556 p.2~3. 569, 576-577, the court reversed on certain charges because two instructions were contradictory and erroneous as a matter of law: "The instruction of the trial court was unfair and prejudicial to the defendant and was not cured by any other instruction given at trial. (Citation omitted) An erroneous instructi.on, clearly prejudicial cannot be cured by another instruction which clearly states the law, but does not call the attention of the jury to the erroneous instruction. " . I would. vacate the judgment and grant a new trial. /-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
