State v. Garberding

246 Mont. 20

• Court: Montana Supreme Court
• Decided: April 23, 1990
• Docket: NO. DC-89-06
• Status: Published

Opinion

On January 23, 1990, the Defendant was sentenced to Count I, twenty (20 years with ten (10 years suspended plus conditions, and a $10,000 fine for Criminal Possession with Intent to Sell; and Count IV, sixteen (16 months in the County Jail for Criminal Possession of Drug Paraphernalia, to run concurrent to Count I, two days credit for time served. Dangerous Designation.

DATED this 23rd day of April, 1990.

On April 23, 990, 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 Allen M. Ressler, Attorney at raw, from Seattle, Washington. 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 to increase it if such is possible. 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.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed shall be affirmed.

The reason for the decision is based in part upon the presumption that the sentence imposed is presumed correct, but also because the police report supports the dangerous offender designation. This Court recognizes that the sentencing court should have included reference to the prior felony offense, not because it occurred within five (5 years, but because it shows a pattern of conduct indicating that the Defendant continues to pose a threat to society.

The Honorable Leif B. Erickson, Acting Chairman, dissenting, the Honorable Robert Boyd, Acting Member, the Honorable Ed. McLean, Judges.