State v. Hout , 377 Mont. 61 ( 2014 )

On April 3, 2008, the Defendant was sentenced for Theft, a felony, in violation of Section 45-6-301, MCA and imposition of sentence shall be deferred for a period of Three (3) years. Defendant shall serve 45 days in the Lake County Jail. The Court is suspending the jail sentence, however at any time the probation officer desires, the jail sentence may be reimposed without further hearing. The deferred imposition of sentence shall be upon the terms and conditions outlined in the Judgment given on April 3, 2008.

On July 30,2009, the Court revoked the deferred imposition of sentence entered on April 3,2008. The Defendant was sentenced for Theft, a felony, in violation of Section 45-6-301, MCA to commitment to the Department of Corrections for a term of Five (5) years with Two (2) years suspended; credit for time served of 13 days; shall not receive credit for any other elapsed probationary time due to violations of probation; Court recommends Defendant be considered for placement at Connections Corrections and prerelease programs if deemed, appropriate by the Department of Corrections. Defendant shall serve 45 days in the Lake County Jail. The Court is suspending the jail sentence, however at any time the probation officer desires, the jail sentence may be reimposed without further hearing; and other terms and conditions given in the Judgment and Commitment on July 30,2009.

On January 16, 2014, the suspended sentence entered on July 30, 2009, was revoked. The Defendant was sentenced for Theft, a felony, in violation of Section 45-6-301, MCA to commitment to Montana State Prison for a term of Two (2) years with none of that time suspended; receive credit for time served on probation holds and this revocation of 34 days; shall not receive credit for any other elapsed probationary time due to violations of probation; Court recommends counseling or treatment that the Parole Board may find appropriate. The Court is suspending the jail sentence, however at any time the probation officer desires, the jail sentence may be reimposed without further hearing; and other terms and conditions given in the Judgment on January 16, 2014.

DATED this 28th day of May, 2014.

On May 8, 2014, 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., 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 12, Rules of the Sentence Review Division of the Supreme Court of Montana, provides that, "The sentence imposed by the District Court is presumed correct. The sentence shall not be reduced or increased unless it is clearly inadequate or clearly excessive.” (Section 46-18-904(3), MCA).

The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is clearly inadequate or clearly excessive.

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

Done in open Court this 8th day of May, 2014.

Chairperson, Hon. Brad Newman, Member Hon. Brenda Gilbert and Alternate Member Hon. John Warner.