State v. Big Hail

319 Mont. 2

• Court: Montana Supreme Court
• Decided: March 28, 2003
• Docket: No. DC-00-747
• Status: Published

Opinion

On August 16,2002, the defendant was sentenced to a commitment to the Department of Corrections for the remainder of his original term or until March 11,2006, for violations of the conditions of a suspended sentence for the offense of DUI, a felony.

On March 6, 2003, 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 Carl DeBelly. 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.

Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that "the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (§46-18-904(3), MCA).

The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed and remanded to district court for purposes of applying the credit mandated by State v. Fisher.

Done in open Court this 6th day of March, 2003.

Chairperson, Hon. Katherine R. Curtis, Member, Hon. Marc G. Buyske and Member, Hon. Gary L. Day.