Street-Time Credit Cannot Be Denied for Restitution Nonpayment Without a DOC-Set Payment Schedule and Specific, Recorded Violations

Commentary on State v. Powell, 2025 MT 218 (Mont. Sept. 30, 2025)

Introduction

In State v. Powell, the Montana Supreme Court clarified a recurring problem at the intersection of restitution enforcement and sentencing credit upon revocation. The question was narrow but consequential: may a district court deny “street-time” credit—that is, credit for elapsed time on probation—based solely on a defendant’s failure to pay restitution and fees during the probationary term, when there is no record that the Department of Corrections (DOC) set a payment schedule or issued clear payment directives?

Defendant-appellant Jacob Tyler Powell pleaded guilty in 2017 to burglary, theft, and criminal mischief, was sentenced to DOC with a suspended portion, and ordered to pay restitution jointly and severally totaling $5,779. After a revocation initiated in 2023 and an admission to a new drug offense, the district court denied Powell any street-time credit, finding he had been “essentially noncompliant throughout” for, among other things, not paying restitution and fees.

The Supreme Court reversed. Drawing together § 46-18-203(7)(b), MCA (street-time credit), with Montana’s restitution statutes and DOC’s supervisory duties, the Court held that nonpayment cannot count as a “record or recollection of violation” sufficient to defeat street-time credit unless DOC has set a monthly payment amount and schedule, communicated clear directives, and the record ties specific missed payments to the disputed period. The decision harmonizes prior rulings cautioning courts against denying credit based on generalized “patterns” of noncompliance, and it operationalizes statutory provisions that place affirmative supervision and payment-structuring obligations on DOC.

Summary of the Opinion

The Court (Justice Bidegaray) held that the district court erroneously denied Powell 883 days of street-time credit under § 46-18-203(7)(b), MCA. The dispositive reasoning:

• Street-time credit is a legal entitlement for periods “without any record or recollection of violations,” and courts must “parse out” timeframes (Jardee, Gudmundsen, Charles, Pennington).
• “Patterns” of misconduct are insufficient; the State must prove specific violations connected to the claimed period.
• Restitution law requires DOC/probation to supervise and structure payments, including setting a monthly amount and schedule (e.g., § 46-18-244(6)(c), § 46-18-245, MCA; Admin. R.M. 20.12.106).
• Where no payment schedule, amount, due date, or documented corrective interventions exist, mere nonpayment is not a “violation” for street-time purposes (relying on Hendrickson v. Salmonsen and informed by Puccinelli).

Because the State offered only an ROV and no testimony or documentation showing a DOC-set payment plan or specific missed payments during August 6, 2020 to January 6, 2023, the Court held the statutory criteria to deny street-time credit were unmet. The case is remanded to award 883 days of credit.

Justice Shea concurred, emphasizing that (1) DOC bears the statutory burden to set and enforce a payment schedule; and (2) the State bears the burden to prove grounds to deny credit. He likened the issue to contract law: one cannot breach a term not in the contract—here, the missing payment schedule required by statute. Chief Justice Swanson concurred in part and dissented in part, arguing that Powell’s judgment required monthly payments and that an undisputed record of nonpayment sufficed to show a continuous violation under Jardee, justifying denial of credit for the entire time.

Detailed Analysis

1) The Statutory and Doctrinal Framework

Street-time credit (§ 46-18-203(7)(b), MCA). Upon revocation, “the judge shall consider any elapsed time, consult the records and recollection of the probation and parole officer, and allow all of the elapsed time served without any record or recollection of violations as a credit.” The statute obliges courts to parse time periods and award credit for spans where no recorded or recollected violations occurred. Denying credit requires the court to state reasons.

Restitution supervision (§§ 46-18-241 to -251, MCA). Restitution is mandatory where the victim suffered pecuniary loss; the obligation persists even after supervision ends until paid in full (§ 46-18-241(1)-(2)). For felony cases, DOC must “supervise the payment of restitution” (§ 46-18-245). Critically, when an offender is on probation, the probation/parole officer “shall set a monthly restitution payment amount” by dividing unpaid restitution by remaining months and may adjust by up to 10% based on the offender’s circumstances (§ 46-18-244(6)(c); Admin. R.M. 20.12.106(4)).

Enforcement tools and safety valves. If default occurs, courts may hold a show-cause hearing; for revocation based on nonpayment, the offender can excuse the violation by showing a “good faith effort” (§§ 46-18-247(2), -203(6)(b)). The court may modify or extend the payment schedule if circumstances change (§ 46-18-246).

MIIG and supervision obligations. Even after the Legislature repealed the “exhaustion” precondition for revocation in 2023, DOC continues to be statutorily guided by the MIIG (see §§ 46-23-1011, -1015, -1028), which instructs graduated responses and documentation for condition violations—including financial obligations—before revocation proceedings.

2) Precedents Applied and Distinguished

• Jardee (2020 MT 81). The Court approved denial of street-time credit where the record showed a continuous violation—false address reporting—throughout the relevant period. Key point: a “pattern” suffices only when tied to specific, ongoing, recorded conduct spanning the claimed time.
• Johnson (2022 MT 216). Denial of credit was proper where admitted violations triggered sanctions, further violations of sanctions, intervention, and more noncompliance—i.e., a documented chain of “specific and ongoing violations” covering the period.
• Gudmundsen (2022 MT 178) and Pennington (2022 MT 180). Courts may not deny street-time credit based on generalized “repeated violations” untethered to the claimed timeframe; the State bears the burden to point to actual violations in the record or the officer’s recollection.
• Charles (2025 MT 58). Street-time credit is a legal mandate, not discretionary; determinations are reviewed de novo for legality. The court must award credit for periods lacking specific recorded violations.
• Puccinelli (2024 MT 114). Although about revocation for restitution nonpayment, the Court emphasized DOC’s obligations to set expectations, budget with the offender, and use graduated interventions. The supervising officer’s failure to set amounts or expectations and to intervene before seeking revocation was central to reversal.
• Hendrickson v. Salmonsen (No. OP 24-0213, 556 P.3d 512 (July 16, 2024)). In a habeas posture, the Court held that nonpayment could not be deemed a violation when the supervising officer never set a specific payment amount or due date and failed to implement corrective measures; the record lacked a point at which nonpayment became a violation.

Powell synthesizes this line of authority: while “continuous” violations (like misreporting or continuing sanction violations) can defeat credit, financial noncompliance cannot be deemed ongoing absent a DOC-set schedule, clear directives, and a record that identifies when specific violations occurred.

3) The Court’s Legal Reasoning in Powell

The majority’s analysis proceeds in three steps:

1. Harmonization. The Court reads § 46-18-203(7)(b) alongside the restitution scheme. Because the Legislature placed a mandatory duty on DOC to “supervise” restitution, including setting monthly payment amounts and schedules tied to the offender’s circumstances (§ 46-18-244(6)(c), § 46-18-245), a probationer’s nonpayment cannot be deemed a “violation” for street-time purposes unless the supervision framework is actually implemented and the record shows what, when, and how the offender violated.
2. Specificity and timing. The State must point to “specific, actual instances of offender conduct constituting a violation” connected to the claimed period (citing Jardee, Johnson, Gudmundsen, Pennington, Charles). A generalized assertion that the offender “never paid” is insufficient; the court needs dates and amounts due versus paid. Without a payment schedule or documentation of missed due dates, the “point at which the lack of restitution payment became a violation” is indeterminate (Hendrickson).
3. Application to the record. Here, the ROV claimed Powell never paid supervision fees and did not pay restitution after January 3, 2020. But the supervising officer did not testify and the record did not show a DOC-set monthly amount, due date, schedule, or interventions addressing nonpayment during the disputed period (Aug. 6, 2020–Jan. 6, 2023). The district court acknowledged the absence of “specifically documented violations” in that window yet denied all street-time credit based on a perceived “pattern.” Under the statute and caselaw, that is legally insufficient.

The Court was careful to reaffirm that the duty to pay restitution remains with the offender and continues even after supervision ends (§ 46-18-241(1)-(2)). But for street-time credit, the State must meet its burden to prove recorded violations in the timeframe at issue—particularly where statute mandates DOC to set payment terms and supervise compliance.

4) Separate Writings

Justice Shea concurred, underscoring two burdens: DOC’s duty to set and enforce the schedule, and the State’s burden to prove why credit should be denied. He offered a helpful analogy: in civil terms, one cannot breach a contract term that was never defined; here, the breach date is the first missed scheduled payment—but without a schedule, there is no clear breach point.

Chief Justice Swanson concurred in part and dissented in part, advocating a simpler approach: the sentencing judgment required “monthly” restitution payments, Powell made virtually none, and that continuous nonpayment sufficed as a recorded violation under Jardee. He cautioned against conflating the “good faith” defense to revocation for restitution nonpayment (§ 46-18-203(6)(b)) with the distinct street-time credit analysis in § 46-18-203(7)(b), and warned that the majority risks “infantilizing” defendants by making the State’s supervisory shortcomings a barrier to enforcing payment conditions in the street-time calculus.

Impact and Practical Implications

For DOC and Probation/Parole

• Set a written monthly restitution amount and due date as required by § 46-18-244(6)(c), tailored to the offender’s circumstances, and communicate it clearly.
• Document payments received, missed due dates, communications, and graduated interventions (MIIG) addressing delinquency before revocation.
• For “supervision fees,” determine and communicate the amount and schedule under § 46-23-1031, MCA, and maintain collection records.
• Anticipate that without this documentation, courts must award street-time credit for the period lacking specific, recorded violations.

For Prosecutors

• In dispositional hearings, present testimony from the supervising officer to supply “records and recollection” identifying specific missed payments tied to due dates during the disputed period.
• Do not rely on generalized statements like “no payments since X date” without proof of a DOC-set schedule and missed installments.
• When seeking to defeat street-time credit based on financial noncompliance, ensure the file contains the payment plan, notices, and intervention steps.

For Defense Counsel

• Demand production of the DOC-set payment schedule and due-date notices; argue Hendrickson/Powell when the State cannot identify a specific violation within the claimed period.
• Seek modification of schedule when circumstances change (§ 46-18-246) and build a record of “good faith effort” for revocation defenses (§ 46-18-203(6)(b)).
• Press for street-time credit “parsing,” particularly for long timelines with sporadic or unrelated violations.

For Trial Courts

• Apply de novo review to the legal entitlement to street-time credit; make clear, period-specific findings.
• Do not deny credit based solely on “patterns”; anchor denials in specific, recorded violations tied to the claimed window.
• When relying on financial noncompliance, confirm the existence of a DOC-set amount and schedule and identify missed due dates.

For Policymakers and Administrators

• Consider standardizing restitution payment schedules and notice templates to ensure early, clear directives and proper recordkeeping.
• Train officers on MIIG use for financial conditions and integrate automated reminders, garnishment authorizations, and documentation protocols.
• Update judgment forms to expressly reference and trigger the statutory requirement for DOC to set the monthly amount within a defined timeframe post-sentencing or post-release.

Complex Concepts Simplified

• Street-time credit: When someone’s suspended or deferred sentence is revoked, they can receive credit for the time they were on the street (not incarcerated), but only for periods with no recorded or recollected violations by their supervising officer. The court must parse the timeline and award credit for compliant periods.
• “Record or recollection of violations”: The statute allows a court to consult both written records and the officer’s testimony. Either way, the State must identify specific violating conduct tied to the timeframe at issue.
• Continuous vs. discrete violations: Some violations are continuous (e.g., falsely reporting an address every time asked). Financial noncompliance can be continuous only if there is a schedule: each missed due date is a discrete violation and, collectively, they show continuous noncompliance. Without a schedule, the violation point is uncertain.
• DOC’s supervisory duty: For felony restitution, DOC must set the monthly amount and manage payments, adjusting for ability to pay, and use graduated interventions to address lapses. This is not optional—it’s mandated by § 46-18-244(6)(c) and § 46-18-245.
• Good faith defense: If revocation is sought due to nonpayment, the offender may excuse the violation by showing a “good faith effort” to obtain the funds. That statutory defense governs the revocation decision; Powell clarifies that for street-time credit, the focus is on whether specific violations are recorded in the relevant period.

Why Powell Matters

Powell cements a practical rule for an often murky area: courts cannot deny street-time credit for restitution nonpayment unless supervision did what the statute says it must—set a schedule, give clear directives, and document what was missed and when. The decision:

• Brings discipline and fairness to street-time determinations by requiring time-bound, specific violations rather than vague “patterns.”
• Aligns street-time credit analysis with DOC’s statutory obligations in restitution enforcement, encouraging proactive supervision and documentation.
• Balances accountability and due process: it preserves the offender’s continuing duty to pay, while guarding against forfeiture of credit based on amorphous or undocumented expectations.

Key Takeaways

• Nonpayment of restitution, standing alone, is insufficient to deny street-time credit unless DOC set a monthly amount and schedule and the record identifies specific missed payments during the relevant period.
• The State bears the burden to prove street-time should be denied with “records and recollection” tied to the dates at issue; “pattern” evidence is not enough.
• DOC must implement § 46-18-244(6)(c) and § 46-18-245 by setting amounts, due dates, and documenting interventions; failing to do so undermines the State’s position on street-time credit.
• Courts must parse the timeline and may not deny credit wholesale absent period-specific violations.
• Offenders still owe restitution until paid in full and should seek schedule modifications when needed and maintain records of good faith efforts.

Conclusion

State v. Powell marks a significant clarification in Montana law: for purposes of denying street-time credit at revocation, restitution nonpayment is a “violation” only when anchored to a DOC-set payment plan and documented missed installments within the disputed period. By harmonizing § 46-18-203(7)(b) with the restitution statutes, the Court ensures that the denial of liberty credit rests on specific, provable noncompliance rather than generalized impressions of a defendant’s performance on supervision. The ruling incentivizes DOC to meet its supervisory obligations, instructs prosecutors to present precise, time-bound proof, and equips courts to make legally sound, transparent credit determinations—while still affirming the offender’s enduring duty to make victims whole. In short, Powell channels restitution enforcement from the realm of assumptions into the realm of records.