State v. Moderie

269 Mont. 90

• Court: Montana Supreme Court
• Decided: October 13, 1994
• Docket: NO. 10756
• Status: Published

Opinion

On March 23,1994, the defendant was sentenced to a term of twenty (20) years on Count II: Sexual Intercourse without consent, a felony, in Montana State Prison and to a term of six (6) months on Count III: Domestic Abuse, a misdemeanor, in the Missoula County Jail. Said sentences shall run concurrently with each other. Ten (10) years of defendant’s sentence on Count II is hereby suspended with conditions as listed in the March 23,1994 judgment. It is the recommendation of the Court that prior to becoming eligible for parole the defendant shall complete the sexual offender, anger management and chemical dependency evaluation and/or treatment at the Montana State Prison. It is further ordered that the defendant shall register as a sexual offender, pursuant to Section 46-23-504 and 46-23-505, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for a period of ten (10) years following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this ten (10) year period.

On October 13, 1994, 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 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 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 continue the hearing. The motion to continue was denied and the defendant proceeded with the hearing.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed. However, the Sentence Review judges agree that the sentence should be increased but under the current rules of the Sentence Review Division, under no circumstances will a defendant receive an increase in sentence without receiving the assistance of counsel if he or she wishes to be represented by such.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Shane Moderie for representing himself in this matter.