State v. Wanstall

373 Mont. 111

• Court: Montana Supreme Court
• Decided: December 12, 2013
• Docket: CAUSE NO. BDC-10-464
• Status: Published

Opinion

On June 22, 2011, the Defendant was sentenced for Count I: Failure to Register or Update Address as a Violent Offender, a felony, in violation of Sections 46-23-502(7), 46-23-502(10), 46-23-505, 46-23-504 and 46-23-507 (2009), MCA; Two (2) years to the Department of Corrections with all time suspended. This sentence shall run consecutive to any other sentence that the Defendant is currently serving [DC-07-477 and DC-07-228]. There is no credit for any time previously served; and other terms and conditions given in the Change of Plea and Judgment of Conviction and Sentencing Order on June 22, 2011.

On March 27, 2013, the Court revoked Defendant’s suspended sentence imposed under Order filed June 26, 2011; and re-sentenced the Defendant to a Two (2) year term of commitment to the Department of Corrections with NO time suspended; the Defendant is credited with 117 days time served presentence; the Court recommends alcohol treatment programming that the Department of Corrections deems appropriate.

On November 7, 2013, the Defendant’s Application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court (hereafter “the Division”).

The Defendant was present and was represented by Ed Sheehy, Jr., Attorney for the Montana Office of Public Defender. The State was not represented.

Before hearing the Application, the Defendant was advised that the 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 Division. The Defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that, “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 46-18-904(3), MCA).

The Defendant made a request to the Division for recalculation of credit for time served. The Division determined that the issue regarding credit for time served is pending in District Court and District Court is the appropriate venue for the Defendant’s request. Therefore, the Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

DATED this 12th day of December, 2013.

Therefore, it is the unanimous decision of the Division that the sentence shall be AFFIRMED.

Done in open Court this 7th day of November, 2013.

Chairperson, Hon. Loren Tucker, Member Hon. Brad Newman and Member Hon. Kathy Seeley.