State v. Schwehr , 330 Mont. 95 ( 2005 )

On July 16, 2004, the defendant was sentenced to a commitment to the Department of Corrections for a term of thirteen (13) months, followed by a term of five (5) years to the Department of Corrections at the Montana State Prison, all suspended, which shall run consecutively to the term imposed above and concurrently with the sentences received in criminal Cause Nos. DC-97-0582 and DC-99-0126, for the offense of Driving a Motor Vehicle While Under the Influence of Alcohol or Drugs, a felony.

On August 8, 2005, 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 Carl DeBelly. The state was represented by Dennis Paxinos.

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 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 of the Supreme Court of Montana provides that “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.” (§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 inadequate or excessive.

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

Done in open Court this 8th day of August, 2005.

DATED this 17th day of August, 2005.

Chairperson, Hon. Gary L. Day, Member, Hon. John Whelan and Member, Hon. Randal I. Spaulding.