State v. Tissue

263 Mont. 40

• Court: Montana Supreme Court
• Decided: May 7, 1993
• Docket: NO. ADC-85-53
• Status: Published

Opinion

On December 23, 1992, the Defendant was sentenced to five (5) years for Sexual Intercourse Without Consent. The Defendant is granted no credit for street time and shall not be eligible for parole until he obtains and completes sex offender treatment.

On May 7,1993, 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 proceed.

After careful consideration, there is a split decision of the Sentence Review Division. The sentence shall be affirmed as originally imposed.

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. Thomas McKittrick, Chairman, and Hon. John Warner, Judge

DISSENT: THE HONORABLE G. TODD BAUGH DISSENTS. He would have amended the sentence upward to include the stipulation that the Defendant would not be eligible for parole for the entire five (5) year term. Judge Baugh finds that the victim of this offense is at risk. If this sentence were imposed by the Sentence Review Division, the case would be referred to counsel pursuant to Rule 14 of the Rules of the Sentence Review Division.

The Sentence Review Board wishes to thank Mr. Tissue for representing himself in this matter.