State v. Foster

308 Mont. 41

• Court: Montana Supreme Court
• Decided: May 30, 2001
• Docket: No. 2191
• Status: Published

Opinion

Decision

DATED this 30th day of May, 2001. Done in open Court this 17th day of May, 2001.

On November 20, 2000, the defendant was sentenced to a four (4) year commitment to the Department of Corrections for violations of the conditions of a suspended sentence for the offense of Sexual Intercourse Without Consent.

On May 17, 2001, 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 James Spangelo. 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.

It is the majority decision of the Sentence Review Division that the sentence shall be amended to a four (4) year commitment to the Department of Corrections, with the balance of this commitment suspended. The defendant shall be immediately released on probation, subject to the original conditions as imposed by Judge McKeon. The Board also imposes the condition that the defendant satisfactorily complete the chemical dependency treatment program that is recommended by Alternatives, Inc., which is where the defendant is presently seeking treatment, while on probation.

The reasons for the amendment are that, under the circumstances, the defendant has paid a significant enough price for the underlying offense and his violations, although they did require revocation, they did not require complete revocation. The Board feels, at this point, that the defendant is an acceptable risk to release on probation and, further more, he is in a position to work and support his family which could help remove them from public assistance to being more productive.

Chairman, Hon. Jeffrey H. Langton, Member, Hon. David Cybulski. The Honorable Katherine R. Curtis dissents.

It is Judge Curtis' opinion that the sentence should be affirmed based on the fact that the defendant's continued offenses while on probation were significant. The defendant's present circumstances appear to be well designed to foster his rehabilitation, given that he is at the Billings pre-release center, working, and attending chemical dependency treatment. The defendant is parole eligible and will apparently be paroled as soon as he completes the chemical dependency treatment program at Alternatives, Inc.

Member, Hon. Katherine R. Curtis.