State v. Brave

State v. Brave, 2016 MT 178 (July 26, 2016) (Shea, J.) (5-0, aff’d & rev’d)

Issue: (1) Whether the district court erred in ordering Brave to pay $25,000 in restitution, and (2) whether the district court erred in imposing several probation conditions.

Short Answer: (1) No, and (2) yes.

Affirmed (1) and reversed (2)

Facts: The state charged Brave with sexual intercourse without consent on the basis of his having committed the offense with AC, who then became pregnant and gave birth to twins. At the time of the offense, Brave was 18 and AC was 14. In May 2014, Brave pled guilty to an amended charge of criminal endangerment, a felony.

Procedural Posture & Holding: The district court held a restitution hearing in September 2014, and a sentencing hearing in November 2014, after which it issued a restitution order ordering Brave to pay $35,667.36 to AC’s mother, DC, which included $25,000 for DC’s lost wages during a 10-week FLA leave of absence that she took after the twins were born. The district court then imposed a six-year deferred sentence subject to several probationary conditions. Brave appeals the restitution order and several of the probation conditions. The Supreme Court affirms the restitution order, reverses several of the probationary conditions, and remands.

Reasoning: (1) Brave contends DC had a duty to mitigate her damages by hiring a child care provider to care for the twins, which presumably would have cost less than DC’s hourly wage of $62.50. When DC took FMLA leave, AC was 15 years old. It was reasonable under the circumstances for DC not to want to entrust a stranger with the care of AC who had previously run away from home, had been hospitalized due to suicidal statements, and was the new mother to twins. The district court did not err in awarding DC $25,000 in lost wages.

(2) Brave alleges that the district court erred by attaching a sex offender designation to him, by issuing a written judgment that does not conform to the oral pronouncement, and by ordering Brave to pay for the presentence investigation and public defender fees without first inquiring into his ability to pay. The state concedes each of these allegations, and the Supreme Court remands for proceedings consistent with this opinion.