State v. Fishburn

On April 12,2011, the Defendant was sentenced for Count I: Theft, a felony, to the Montana State Prison for a period of ten (10) years, with two (2) years suspended; Count H: Ten (10) years in the Montana State Prison, with two (2) years suspended; and Count HI: Ten (10) years in the Montana State Prison, with two (2) years suspended. The foregoing sentences shall run consecutively with each other. The defendant is granted credit for time served prior to sentencing from June 16,2010 - April 6, 2011. Restitution was ordered at $34,888 plus administrative handling fee of $3,488.

On November 7,2014, 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).

DATED this 1st day of December, 2014.

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 7th day of November, 2014.

Chairperson, Hon. BradNewman,Member Hon. Kathy Seeley and Alternate Member Hon. John Warner.