State v. Brothers

State v. Brothers, 2013 MT 222 (Aug. 13, 2013) (5-0) (Wheat, J.)

Issue: Whether the district court erred by ordering Brothers to pay restitution to the state.

Short Answer: Yes.

Reversed & remanded to amend judgment

Facts: Brothers was charged with sexual assault, incest, and indecent exposure in September 2010. He was arrested in New Mexico in January 2011, and pled guilty to one count of sexual assault in February 2012 as part of a plea agreement. The state recommended a 15-year prison sentence with 10 years suspended, and allowed Brothers to withdraw his plea if the court imposed a different sentence.

Procedural Posture & Holding: At the sentencing hearing, the state asked that Brothers pay $1069 in restitution for the cost of extraditing Brothers from New Mexico. No affidavit or testimony was proffered in support. Brothers objected. The Court ordered the restitution and imposed a sentence of 20 years with 10 years suspended. Brothers withdrew his plea, and the state and Brothers filed a joint motion to amend the judgment and sentence. The Court resentenced Brothers to 15 years with 10 suspended, and ordered him again to pay restitution. Brothers appeals the restitution order, and the Supreme Court reverses.

Reasoning: The restitution statute requires a sentencing judge to require payment of restitution to a victim who has sustained a pecuniary loss. Both the state and Brothers agree the district court lacked authority to impose restitution without any evidence of the loss. While neither party argues the lower court lacked authority because the state is not a victim, the Court reverses on that basis.