Can a Montana Restitution Order Be Thrown Out on Appeal? State v. Fahnestock, Order of Oct. 29, 2019
Yes. In State v. Fahnestock (DA 18-0561), the Montana Supreme Court struck a $21,661.69 restitution award by order dated October 29, 2019, and sent the case back for a new restitution hearing. The appeal argued that the award did not follow Montana’s sentencing statutes, and the State conceded. The order is unpublished and is not precedent.
Key Takeaways
- The Supreme Court ordered that the portion of the sentencing order “ordering restitution in the amount of $21,661.69 is STRICKEN” (Fahnestock Order at 1).
- The appeal argued that the restitution “did not adhere to the mandates of the applicable sentencing statutes,” and the State filed a Notice of Concession (Order at 1).
- On remand, the district court must “determine restitution based on the evidentiary record and governing legal principles” (Order at 1).
In this case sheet: At a glance · What the Court ordered · What changed · Statutes · When it applies · How hard · FAQ
The lawyers behind this case are the lawyers who handle yours. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.
At a glance
| Citation | State v. Fahnestock, No. DA 18-0561 (Mont. Oct. 29, 2019) (unpublished order) |
| Court | Montana Supreme Court (order of the Court) |
| Decided | October 29, 2019 |
| Docket | DA 18-0561, on appeal from the Second Judicial District, Butte-Silver Bow County |
| Result | $21,661.69 restitution stricken; remanded for a new restitution hearing |
| Counsel for Mr. Fahnestock | Samir F. Aarab, Boland Aarab PLLP |
| Read the order | Official order (Montana Supreme Court docket, PDF) |
Case documents
What did the Montana Supreme Court order in State v. Fahnestock?
Mr. Fahnestock was convicted of felony theft under § 45-6-301(3)(a), MCA. An August 2, 2018 sentencing order required him to pay $21,661.69 in restitution (Order at 1). On appeal, he argued that the restitution obligation “did not adhere to the mandates of the applicable sentencing statutes.” After his opening brief was filed, the State filed a Notice of Concession agreeing that the case should be remanded for a new restitution hearing (Order at 1).
Based on the opening brief and the concession, the Supreme Court struck the restitution award. It remanded with instructions to hold a new hearing and to “determine restitution based on the evidentiary record and governing legal principles” (Order at 1). The conviction itself was not at issue.
What did Fahnestock change in Montana law?
Nothing. It is a short, unpublished order entered on the State’s concession, and it does not explain the legal error in detail. Its value is practical. Restitution is part of the sentence, it must follow the statutes, and an unsupported award can be challenged on appeal.
Which Montana laws and rules apply?
- § 45-6-301, MCA: theft. It has been amended several times since 2019 (2019, 2023 and 2025), so subsection numbering may differ from the order’s “(3)(a).”
- § 46-18-241, MCA, § 46-18-243, MCA and § 46-18-244, MCA: restitution, definitions of victim and pecuniary loss, and the court’s duty to specify the amount. The order refers only to “the applicable sentencing statutes” and does not name these sections. § 46-18-241 was amended in 2023 and 2025.
When might Fahnestock apply to you?
- A restitution number you cannot trace. If the figure is not supported by the record, it can be challenged.
- A victim waiting on restitution. A remand for a new hearing means the amount will be set again, on the evidence.
- The State agrees there was an error. A concession can resolve an appeal quickly, as it did here.
How hard is it to overturn a restitution award in Montana?
The order does not state a standard of review, and it did not need to, because the State conceded. It is a reminder that restitution must be decided “based on the evidentiary record and governing legal principles” (Order at 1). An award that departs from either can be corrected.
The Boland Aarab Way
Samir F. Aarab of Boland Aarab PLLP represented Mr. Fahnestock on appeal. The opening brief was strong enough that the State conceded the error and the award was struck without further briefing. Proving every number, and holding the other side to its proof, is central to our serious trucking and injury cases and catastrophic injury cases. When you hire Boland Aarab, you work directly with the attorneys whose names are on orders like this one.
Frequently Asked Questions
Can restitution in a Montana criminal case be appealed? Yes. In Fahnestock, the Supreme Court struck a $21,661.69 award that the appeal argued did not follow the sentencing statutes (Order at 1).
What happens after a restitution award is struck? The district court holds a new restitution hearing and sets the amount “based on the evidentiary record and governing legal principles” (Fahnestock Order at 1).
Is the Fahnestock order precedent? No. It is an unpublished order entered on the State’s concession, not a published opinion.
Work With the Lawyers Behind These Cases
Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court and the Ninth Circuit handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.
About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.
Sources:
- State v. Fahnestock, DA 18-0561, Order (Oct. 29, 2019)
- § 45-6-301, MCA
- § 46-18-241, MCA
- § 46-18-243, MCA
- § 46-18-244, MCA
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.