State v. Dovey

2016 MT 118N

• Court: Montana Supreme Court
• Decided: May 17, 2016
• Docket: 15-0496
• Status: Published

Opinion

May 17 2016

DA 15-0496 Case Number: DA 15-0496

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 118N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JOHN CRESWELL DOVEY,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DC 15-118 Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana

Steve Eschenbacher, Lake County Attorney, Polson, Montana

Submitted on Briefs: April 27, 2016

Decided: May 17, 2016

Filed:

__________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), 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 John Creswell Dovey appeals a judgment from the Twentieth Judicial District

Court, Lake County, which ordered him to pay $26,562.00 in restitution. The issue is

whether the District Court erred in awarding restitution conforming to the full amount of

Dovey’s theft—excluding items recovered—without reducing it by the amount the victim

was reimbursed pursuant to an insurance policy covering Dovey’s theft. We affirm.

¶3 On May 21, 2015, Dovey pled guilty to felony theft against his former employer,

Westland Seed (Westland). On July 2, 2015, the District Court held a hearing to

determine restitution. On July 7, 2015, the District Court entered a judgment ordering

Dovey to pay $26,562.001 in restitution to Westland. Westland’s insurer had covered and

reimbursed $26,208.60 of the related losses. Dovey requested the District Court to

reduce his restitution by the $26,208.60 Westland received from its insurer. The District

Court denied the request. Dovey appeals.

¶4 “A criminal sentence is reviewed for legality.” State v. Simpson, 2014 MT 175,

¶ 8, 375 Mont. 393, 328 P.3d 693.

1 The parties agree that the net amount of unrecovered stolen property is $26,500.62. The District Court’s Order incorrectly stated the amount as $26,562.00. The Order may be corrected on remand.

2 ¶5 Dovey contends the District Court should have reduced his restitution by the

amount Westland’s insurer paid out. Citing § 46-18-243(1)(a), MCA, Dovey argues

Westland’s pecuniary loss is only around $300 because Montana’s restitution statutes

only allow a victim to recover what he or she otherwise would be able to recover in a

civil action. Dovey contends that Westland should not recover from both Dovey and its

insurer, because such recovery would result in a windfall of redundant payments. Dovey

also argues the State failed to identify Westland’s insurer as a victim, and therefore the

insurer cannot benefit from Dovey paying full restitution.

¶6 The State counters that in State v. Fenner, 2014 MT 131, 375 Mont. 131,

325 P.3d 691, this Court settled the law regarding restitution when a victim has been

compensated by its own insurance policy. We agree. In Fenner, we rejected the same

argument that Dovey makes in this case—that a criminal defendant’s restitution to the

victim “should be reduced by the amount paid by the insurer.” Fenner, ¶ 9. We held:

“[w]hile the restitution statutes include an insurer as a victim to the extent that it has paid

reimbursement for the loss, § 46-18-243(2)(a)(iv), MCA, there is no provision requiring

deduction of any such reimbursement from the amount the offender must be ordered to

pay.” Fenner, ¶ 12. Dovey failed to address Fenner in his opening brief. In his reply

brief, Dovey’s argument is basically that our holding in Fenner is distinguishable from

the present case—it is not—or that we should set aside Fenner—we do not. Boiled

down, Dovey’s argument is that he is more deserving of the windfall from his victim’s

insurance policy than is his victim. We opt to stay on this side of the looking-glass and

affirm the District Court’s Judgment.

3 ¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were correct. We affirm and remand to the District Court to amend

its Order to state the correct amount of restitution as $26,500.62.

/S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE