State v. Barker ( 1969 )

DECISION

The application of the above-named defendant for a review of the sentence of two 5 year concurrent sentences on 2 counts of uttering and delivering fraudulent checks, with no provision concerning 81 days jail imprisonment, imposed on April 22, 1969, was fully heard and after a careful consideration of the entire matter it is decided that:

(1) The sentences be and remain as originally imposed, except that for the guidance of the State Prison and the State Board of Pardons, it is specifically directed that defendant’s 81 days imprisonment in the county jail prior to confinement in the State Prison shall be credited to the defendant as though already served in the State Prison at the time of reception and shall be so used in computing the time when defendant may be considered for parole purposes.

Respecting the specific direction concerning defendant’s 81 days jail imprisonment, it is our opinion that the law permits no other method of treating the same. Section 95-2215, R.C.M. 1947; State v. Zachmeier, 153 Mont. 64, 453 P.2d 783, 26 St. Rep. 210.

As to the sentences, aside from the direction given concerning defendant’s 81 days jail imprisonment, they appear proper, the presumption being that the sentencing judge was correct in his assessment of the situation. State v. Ellis, and other eases cited therein decided by us April 7, 1969, although the sentences could have been much more severe considering that in addition to 5 years imprisonment for the crime concerned, the law provides for fines up to $5,000, the sentences might have been made consecutive, and the defendant has a record of 3 prior felony convictions, 2 for burglary and 1 for robbery.

SENTENCE REVIEW DIVISION

Philip C. Duncan, chairman; Paul G. Hatfield, Jack D. Shanstrom.