State v. Briscoe , 286 Mont. 38 ( 1997 )

On March 20,1997, it was ordered that for the offense of Count I - Burglary, a felony, in violation of Section 45-6-204, MCA, occurring April 30, 1994, in Cause No. CDC 94-125, the defendant is sentenced to Montana State Prison for ten (10) years. It is further ordered, adjudged and decreed that for the offense of Count II - Theft, a felony, in violation of Section 45-6-301(l)(a), MCA, occurring April 30,1994, in Cause No. CDC 94-125, the defendant is sentenced to Montana State Prison for ten (10) years. It is further ordered, adjudged and decreed that for the offense of Count III - Burglary, a felony, in violation of Section 45-6-204, MCA, occurring May 20, 1994, in Cause No. CDC 94-125, the defendant is sentenced to Montana State Prison for ten (10) years. It is further ordered, adjudged and decreed that for the offense of Count IV - Theft, a felony, in violation of Section 45-6-301(l)(a), MCA, occurring May 20, 1994, in Cause No. CDC 94-125, the defendant is sentenced to Montana State Prison for ten (10) years. The foregoing sentences shall run concurrently with each other. It is further ordered, adjudged and decreed that for the offense of Count I - Theft, a felony, in Cause No. ADC 96-317, the defendant is sentenced to Montana State Prison for ten (10) years, with five (5) years suspended upon the conditions hereinafter set forth. This sentence shall run consecutively to the sentences imposed in Cause No. CDC 94-125. It is further ordered, adjudged and decreed that for the offense of Count II - Theft, a felony, in Cause No. ADC 96-317, the defendant is sentenced to Montana State Prison for ten (10) years, with all of that time suspended upon the conditions hereinafter set forth. This sentence shall run consecutively to the sentence imposed for Count I in Cause No. ADC 96-317. The defendant is not granted credit for street time. The defendant is granted 158 days’ credit for time served. Conditions of defendant’s parole/probation are stated in the March 20, 1997 judgment.

DATED this 13th day of June, 1997.

On May 8,1997, 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 May, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Alternate Member, Hon. Robert Boyd.

The Sentence Review Board wishes to thank Billy Joe Briscoe for representing himself in this matter.