State v. Hayes , 281 Mont. 14 ( 1996 )

On January 13, 1995, the Court ordered the defendant, Brian Charles Hayes to a term of five (5) years at hard labor upon said conviction of Criminal Mischief, a felony, at Montana State Prison, in Deer Lodge. Provided, however, that the court recommends that defendant be permitted to participate in the Boot Camp Program at Swan River if he desires, and if he successfully completes the same, together with the prerelease program and conditions, he may request the court to reconsider this sentence and modify it to a suspended sentence. In the event of such modification, the terms of defendant’s probation shall include, but not be limited to the following, as stated in the January 13, 1995 judgment. That defendant is sentenced to a fine of $500.00, to be paid hereinafter set forth, and if not, to be served at the rate of $25.00 per day in Montana State Prison. Said fine shall be credited to the County general fund. Defendant shall also pay restitution to the victims of $575.30 and Park County of $250.00 for court-appointed attorney fees in this case, as hereinafter set forth. That defendant shall also pay a surcharge of $20.00 to the clerk of court within five days hereafter. That defendant is hereby designated as a nondangerous offender, and his parole eligibility shall be determined accordingly. He shall also receive credit for five (5) days served, plus any additional time after sentencing on January 12,1995. That defendant shall participate in and complete anger management classes and chemical dependency counseling available at Montana State Prison and said Boot Camp, and comply with all rules and regulations thereof.

On March 8,1996, 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. 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.

Rule 17 of the Rules of the Sentence Review Division provides: "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 45-18-904(3), MCA.) 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.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 8th day of March, 1996.

Chairman, Hon. Ted O. Lympus Member, Hon. Jeffrey M. Sherlock Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Brian Charles Hayes for representing himself in this matter.