STATE OF MONTANA,
Plaintiff and Appellee,
v.
DAVID JOHN FERRE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-11-372
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
David John Ferre, self-represented; Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant
Attorney General; Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Missoula, Montana
Submitted on Briefs: May 28, 2014
Decided: June 10, 2014
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 David John Ferre was convicted of burglary pursuant to a no contest plea on
May 1, 2012. On September 28, 2012, after a hearing, a written judgment was entered
sentencing Ferre to five years with the Department of Corrections (DOC), suspended
upon conditions. He remains incarcerated for other offenses. Ferre appeals from the
Order of the Fourth Judicial District Court, Missoula County, denying his motion that
challenged the conditions of his sentence assessing fees and costs against him,
particularly, a $50 fee payable to the DOC for the pre-sentence investigation report (PSI),
imposed by Condition 15 of his sentence. Ferre’s motion was denominated a Motion to
Compel and stated it was made pursuant to § 46-18-246, MCA. The motion also sought
modification of Conditions 13, 14, and 15 of his sentence, and thus the District Court
construed the pleading as requesting an amendment to the Judgment and as a motion to
compel the DOC to reimburse Ferre for the $50 already taken from his prison account for
the PSI fee.
¶3 Ferre argues that the assessed fees and costs are burdensome and will interfere
with his ability to support himself financially when he is released from confinement,
2
particularly given his medical conditions. He argues that the fees and costs were imposed
based upon a misunderstanding of a statement he made during sentencing about paying
the fees and costs.
¶4 In denying his motion to amend the Judgment, the District Court reasoned that
using a “small portion” of the balance of Ferre’s prison account to pay the $50 PSI fee
was “not unreasonable since the PSI has been completed.” Noting that the balance of the
$980 in assessed fees and costs would not be due until Ferre is released from custody, the
court reasoned that “there is no reason to believe that [Ferre] will not be eligible for
[SSDI] assistance upon his release from custody,” as he had previously received. The
court also noted the potential for limited income from work at that time. The court
indicated that it understood Ferre’s statements at sentencing to be an admission that he
could pay these costs and fees.
¶5 Section 46-18-246, MCA, cited by Ferre’s pleading, provides that an offender may
request an adjustment or waiver of a restitution obligation. Although his Judgment states
that Ferre “shall pay all fines, fees, and restitution . . . as listed below,” only fees and
costs were actually ordered to be paid, and no other restitution.1 Thus, § 46-18-246,
MCA, is not applicable here. The proper statutory citation is § 46-18-232(3), MCA,
which governs requests for remission of payment of certain costs under circumstances
demonstrating “manifest hardship” on the defendant, and which Ferre correctly cites in
his appellate briefing.
1
The PSI did not recommend payment of restitution, stating that “it is my understanding the
stole [sic] TV was recovered, therefore I have no restitution information.”
3
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issues in this case are legal and are controlled by settled Montana law, which the District
Court correctly interpreted. There was no abuse of discretion on any discretionary issues.
Having reviewed the briefs and record on appeal, we conclude that Appellant has not
demonstrated error by the District Court.
¶7 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
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