State v. McShane

319 Mont. 33

• Court: Montana Supreme Court
• Decided: May 19, 2003
• Docket: No. DC-02-017
• Status: Published

Opinion

On December 23, 2002, the defendant was sentenced to seven (7) years in the Montana State Prison, with five (5) years suspended, for the offense of Theft of Property by Embezzlement, a felony.

DATED this 19th day of May, 2003.

On May 8, 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 advised of his right to be represented by counsel. The defendant proceeded pro se. 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.

Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to a seven (7) year commitment to the Department of Corrections, with five (5) years suspended.

The defendant would then be immediately eligible for all of the various placements available under the Department of Corrections. Potentially, the defendant’s ability to pay restitution to his victim would be enhanced by the ability of the Department of Corrections to place him somewhere other than in the Montana State Prison.

Done in open Court this 8th day of May, 2003.

Chairperson, Hon. Katherine R. Curtis, Member, Hon. Marc G. Buyske and Alt. Member, Hon. John W. Whelan.