State v. Allery

325 Mont. 102

• Court: Montana Supreme Court
• Decided: December 3, 2004
• Docket: No. DC-89-8777
• Status: Published

Opinion

On January 27,2004, the defendant was sentenced to a commitment to the Department of Corrections for a term of fifteen (15) years, with ten (10) years suspended, for the offense of Criminal Possession of Dangerous Drugs with Intent to Sell, a felony.

On November 19, 2004, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by Rob Henry. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

The Division finds that the reasons advanced for modification are sufficient to hold that the sentence imposed by the District Court is clearly excessive. The reasons the Division believes this sentence is excessive is that the sentencing judge did not properly consider credit for supervisory time up to the time of revocation.

DATED this 3rd day of December, 2004.

Therefore, it is the unanimous decision of the Sentence Review Division that the sentence he modified to a commitment of ten (10) years to the Department of Correction, with all time suspended, adopting all terms and conditions that are imposed in the sentencing order of January 27, 2004.

Done in open Court this 19th day of November, 2004.

Alt. Chairperson, Hon. Gary Day, Member, Hon. John Whelan and Alt. Member, Hon. Randal Spaulding.