I*VW 11/17/2020

IN THE SUPREME COURT OF THE STATE OF MONTANA DA 18-0258 FILFT-11 STATE OF MONTANA, NOV 17 2020 Bowen Greenwood Plaintiff and Appellee, Clerk of Supreme Court State of Montana v. ORDER JOSHUA PAUL SCARBOROUGH, Defendant and Appellant.

Joshua Scarborough appeals the Thirteenth Judicial District Court's imposition of sentence for several felony convictions. Under a global plea agreement, Scarborough pleaded guilty to six felonies and ten misdemeanors in five separate cases. In addition to a prison sentence in each ofthe five cases, the District Court ordered that Scarborough pay a combined total of $19,100 in fines, with $4,300 of those fines to run concurrently, for a net total fine of$14,800. In his opening brief, Scarborough argued that the court failed to consider his ability to pay before imposing the fines and that the written judgment does not conform to the oral pronouncement of sentence regarding the amount of credit for time served. In response, the State points out that Scarborough did not object when the District Court ordered that he pay fines as a condition of his sentence, even when the District Court provided him with the opportunity to do so. I t thus argues that Scarborough failed to preserve his argument. The State acknowledges,however,that a limited remand for the purpose of amending Scarborough's written judgments to conform to the oral sentence would be appropriate.

After this Court granted Scarborough an extension of time to file his reply brief, Scarborough submitted a Notice of Concession. Without agreeing with the State that fines were legally imposed, Scarborough agrees that the appeal may be resolved with an order remanding the case for arnendment of the judgment to reflect the proper arnount of time served. The record reflects that the District Court advised Scarborough durim4 its oral pronouncement that he would receive credit against the fines "for all the time you've served in jail to this point." Although the written judgments for Scarborough's cases specifically state that he should be awarded credit for time served in pretrial incarceration, they do not mention credit for time served against his fines. The parties agree that Scarborough's judgments should be amended to state that he should be awarded credit against his fines for the time he served in pretrial incarceration. According to Scarborough's Notice of Concession, supported by the sentencing hearing transcript, Scarborough is entitled to days of credit for time served against his fines instead of the 255 days stated in the written judgment. If the daily rate applied to credit for time served does not elirninate the fines, as he has calculated they will, Scarborough reserves the right to appeal the amended judgments on the basis that the fines were not legally imposed, as argued in his opening brief.

Having reviewed the briefs and relevant transcript, and good cause appearing, IT IS HEREBY ORDERED that this matter is REMANDED to the Thirteenth Judicial District Court, Yellowstone County, with instructions to amend the judgments against Scarborough in its Cause Numbers DC 16-1246, DC 16-1271, DC 16-1294, DC 17-0058, and DC 17-0779 to state,"The Defendant shall be given credit against the fine for time served in jail prior to conviction.(§ 46-18-403, MCA)." IT IS FURTHER ORDERED that the appeal is DISMISSED without prejudice.

The Clerk is directed to provide copies ofthis Order to all counsel ofrecord and to the Honorable Donald L. Harris, presiding judge.

DATED this -3. — day of November, 2020.

Justices