State v. Lowry

On October 9,1996, the Court found the defendant was in violation of the conditions of his suspended sentence and it is the judgment of the Court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term of seven (7) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. The sentence shall run consecutively to the sentence imposed in Cause No. 9281. Due to the defendant’s failure to comply with the terms and conditions of his suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this Order, except that he shall receive credit from December 17, 1995, through December 20, 1995; and from September 27, 1996, through the date of sentencing, October 9,1996, for seventeen (17) days jail time which he has previously served.

DATED this 19th 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 represented by Josh Van de Wetering, Deputy County Attorney of Missoula County.

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.

To clarify Mr. Lowry’s question, it is correct that Cause No. 9281 run consecutive to Cause No. 10163. Reasons being that the defendant was sentenced in both cases when the law provided for consecutive sentences when not otherwise specified.

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 Larry Lovyry for representing himself in this matter and also Josh Van de Wetering, Deputy County Attorney of Missoula County, for representing the State.