State v. Butler ( 2002 )

On July 13, 1999, the defendant was sentenced to the following: Count I: Thirty (30) year commitment to the Department of Corrections for the offense of Attempted Deliberate Homicide, a felony; and Count II: Thirty (30) year commitment to the Department of Corrections for the offense of Attempted Robbery, a felony, to run concurrently with Count I.

On November 14, 2002, 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 was represented by Brad Belke. 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 farther 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 defendant in this matter was sentenced as a youth. Under §41-5-2510, MCA, the defendant is entitled to request a review at the district court level. The defendant made a timely request for a review at the district court level, but a hearing was not held and the review request was denied. It appears that a review is required under §41-5-2510, MCA. An evidentiary hearing must be held and, once a ruling is made following the evidentiary hearing, the defendant would then be entitled to request a review of his sentence by the Sentence Review Division.

Therefore, this matter is remanded to the district court for a hearing and ruling pursuant to §41-5-2510, MCA.

Done in open Court this 14th day of November, 2002.

DATED this 11th day of December, 2002.

Chairman, Hon. David Cybulski; Member, Hon. Katherine R. Curtis and Member, Hon. Marc Buyske.