State v. Polk

325 Mont. 5

Opinion

On August 5, 2003, the defendant was sentenced to the following: Escape, a felony: Three (3) year commitment to the Department of Corrections, to run consecutively with the sentence the defendant is currently serving.

On March 26, 2004, 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 Carl DeBelly. The state was represented by Margaret Gallagher.

DATED this 5th day of April, 2004.

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 she understood this and stated that she wished to proceed.

The Division finds that the imposition of restitution is clearly excessive because there was not the inquiry made by the sentencing court necessary to impose restitution; there was not accurate financial background reflected in the financial profile of the pre-sentence investigation report; nor did the defendant consent to restitution. Therefore, the Division will modify the sentence to eliminate any requirement of the defendant to pay restitution in the amount of $400.25. In all other respects, the sentence is affirmed.

Done in open Court this 26th Day of March, 2004.

Chairperson, Hon. Marc G. Buyske, Member, Hon. Gary L. Day and Member, Hon. John W. Whelan.