SENATE BILL NO. 204
INTRODUCED BY J. COBB
AN ACT CLARIFYING THAT A COURT SENTENCING A CRIMINAL OFFENDER MUST SPECIFY THE TOTAL AMOUNT OF RESTITUTION TO BE PAID TO THE VICTIM; PROVIDING THAT THE TOTAL AMOUNT ORDERED TO BE PAID MAY BE COLLECTED BY THE VICTIM AT ANY TIME, INCLUDING AFTER STATE SUPERVISION OF THE OFFENDER ENDS, USING ANY METHOD ALLOWED BY LAW FOR THE COLLECTION OF A CIVIL JUDGMENT; AMENDING SECTIONS 46-18-244 AND 46-18-249, MCA; AND PROVIDING A RETROACTIVE APPLICABILITY DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 46-18-244, MCA, is amended to read:
"46-18-244. Type and time of payment -- defenses. (1) The court shall specify the total amount, to be paid and the
method, and time of each payment to the victim and may permit payment in installments.
(2) In determining the amount, method, and time of each installment payment, the court shall consider the financial resources and future ability of the offender to pay. The court shall provide for payment to a victim of the full amount of the pecuniary loss caused by the offense. The offender may assert any defense that the offender could raise in a civil action for the loss sought to be compensated by the restitution order.
(3) In addition to other methods of payment, the court may order one or more of the following in order to satisfy the offender's restitution obligation:
(a) forfeiture and sale of the offender's assets under the provisions of Title 25, chapter 13, part 7, unless the court finds, after notice and an opportunity for the offender to be heard, that the assets are reasonably necessary for the offender to sustain a living or support the offender's dependents or unless the state determines that the cost of forfeiture and sale would outweigh the amount available to the victim after sale. If the proceeds of sale exceed the amount of restitution ordered and the costs of forfeiture and sale, any remaining amount must be returned to the offender.
(b) return of any property to the victim;
(c) payment of up to one-third of the offender's prison earnings.
(4) With the consent of the victim and in the discretion of the court, an offender may be ordered to make restitution in services to the victim in lieu of money or to make restitution to a person designated by the victim, if that person provided services to the victim as a result of the offense.
(5) After a prosecution is commenced and upon petition of the prosecutor, the court may grant a restraining order or injunction, require a satisfactory bond, or take other action if the court finds that the restraining order or injunction, bond, or other action is necessary to preserve property or assets that could be used to satisfy an anticipated restitution order. A hearing must be held on the petition, and any person with an interest in the property is entitled to be heard."
Section 2. Section 46-18-249, MCA, is amended to read:
"46-18-249. Civil actions by victim. (1) Sections The total amount that a court orders to be paid to a victim may be
treated as a civil judgment against the offender and may be collected by the victim at any time, including after state
supervision of the offender ends, using any method allowed by law, including execution upon a judgment, for the collection
of a civil judgment. However, 46-18-241 through 46-18-249 46-18-248 and this section do not limit or impair the right of a
victim to sue and recover damages from the offender in a separate civil action.
(2) The findings in the sentencing hearing and the fact that restitution was required or paid are not admissible as evidence in a separate civil action and have no legal effect on the merits of a separate civil action.
(3) Any restitution paid by the offender to the victim under a restitution order contained in a criminal sentence,
including an amount or amounts paid in a civil proceeding to enforce payment of a restitution order contained in a criminal
sentence, must be set off against any pecuniary loss awarded to the victim in a separate civil action arising out of the facts
or events which that were the basis for the restitution. The court trying the separate civil action shall determine the amount
of any setoff asserted by the defendant under this section."
Section 3. Retroactive applicability. [Section 2] applies retroactively, within the meaning of 1-2-109, to restitution ordered to be paid prior to [the effective date of this act].
- END -
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