State v. Murphy

246 Mont. 12

• Court: Montana Supreme Court
• Decided: March 8, 1990
• Docket: NO. DC-84-19
• Status: Published

Opinion

On June 11, 1985, the Defendant was sentenced to Count I, Burglary, ten (10) years; Count II, Theft, ten (10) years; said sentences are to run consecutively; 84 days credit for time served plus any additional time served after sentencing; dangerous offender.

On March 8, 1990, 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 Lois Adams, of the Montana Defender Project. 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 decision of the Sentence Review Division that the sentence shall be increased to twenty (20) years for Burglary; and the sentence for the Theft conviction shall remain at ten (10) years; however the two sentences shall run concurrently to each other. The dangerous designation will remain the same as originally imposed.

The reason for the decision is that the total sentence is appropriate considering the defendant’s history. He is being sentenced essentially for one act and that is the Burglary and under that circumstance the sentences shall run concurrently.

Hon. C. B. McNeil dissents. Judge McNeil would affirm the sentence imposed by the sentencing judge based upon the presumption of the correctness of the District Court Judge.