On September 25, 2002, the defendant was sentenced to the following: Count I: Burglary, a felony: Ten (10) years in the Montana State Prison, with five (5) years suspended; and Count II: Theft, a felony: Ten (10) years in the Montana State Prison, with five (5) years suspended, to run concurrently with the sentence imposed in Count I.
On May 8, 2003, the defendants 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 Larry Nistler. 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 increase it. 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.
The Division finds that the reasons advanced for modification are sufficient to hold that the sentence imposed by the District Court is excessive only in the aspect that it is a sentence to the Montana State Prison as opposed to a commitment to the Department of Corrections. The defendant is fairly young, and a Department of Corrections commitment would enable him to take advantage of alternative placements, which the Division finds appropriate under the circumstances.
Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified to the following: Count I: Ten (10) year commitment to the Department of Corrections, with five (5) years suspended; and Count II: Ten (10) year commitment to the Department of Corrections, with five (5) years suspended, to run concurrently with the sentence imposed in Count I.
DATED this 19th day of May, 2003.
Done in open Court this 8th day of May, 2003.
Chairperson, Hon. Katherine R. Curtis, Member, Hon. Marc G. Buyske and Alt. Member, Hon. John W. Whelan.