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State v. Pfau8/7/2000
APPEAL FROM: District Court of the Twenty-First Judicial District, In and for the County of Ravalli, The Honorable Jeffrey H. Langton, Judge presiding.
Submitted on Briefs: March 30, 2000
1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number, and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.
2 Tracy Michael Pfau (Pfau) appeals from the Order Regarding Restitution entered by the Twenty-First Judicial District Court, Ravalli County, which, among other things, imposed restitution for investigative costs in the amount of $5,560. We reverse and remand.
3 The sole issue on appeal is whether the District Court erred in ordering Pfau to pay investigative costs as restitution.
BACKGROUND
4 Sometime after July of 1997, a confidential informant reported to the State Compensation Insurance Fund (State Fund), the workers' compensation carrier paying Pfau benefits for an employment-related injury, that Pfau was boasting of receiving workers' compensation benefits while working. Agent Merle Vines of the Montana Criminal Investigation Bureau conducted an investigation which substantiated the report and determined that Pfau had received $5,520 in workers' compensation benefits to which he was not entitled while working.
5 The State of Montana (State) charged Pfau with felony theft in violation of § 45-6-301(5)(b), MCA, and felony tampering with witnesses and informants in violation of § 45-7-206(1)(a), MCA. Pursuant to a plea agreement, Pfau ultimately pled guilty to the felony theft charge and the tampering with witnesses and informants charge was dismissed. The District Court subsequently sentenced Pfau and entered judgment. The sentence included payment of restitution, with the court reserving jurisdiction to determine the amount of restitution at a later time.
6 At the restitution hearing, Pfau did not dispute his obligation to pay $5,520 restitution for the workers' compensation benefits improperly received. He contended, however, that he could not be required to pay restitution for the costs of the investigation which led to the charges. With regard to those costs, Pfau and the State stipulated that the Workers' Compensation Division (Division) had requested the Department of Justice (Department) to investigate this matter; Department investigators spent 139 hours preparing the case; the Department charges the Division $40 per hour and, as a result, the cost of investigation of this matter was $5,560; and the Division does not pay the Department on a per hour or per case basis, but pays $300,000 per year from its budget to the Department for expenses in investigations such as the one conducted in this case.
7 The District Court determined that "the State" was a victim for purposes of restitution under § 46-18-243(2)(a)(iii), MCA, and that the investigative costs constituted a pecuniary loss as defined in § 46-18-243(1)(b), MCA. The court also referenced the "broad array" of special damages defined as pecuniary loss in § 46-18-243(1)(a), MCA, including "out-of- pocket losses." On the basis of those statutes, the District Court concluded that the costs of investigation were out-of-pocket expenses recoverable as restitution. Accordingly, it ordered restitution in the amounts of $5,520 for improperly received benefits and $5,560 for costs of investigation, plus $1,108 in administrative fees.
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