State v. Burk

On July 29, 1987, the Defendant was sentenced to Sexual Intercourse Without Consent, twenty-five (25) years, plus ten (10) years for the use of a weapon. The sentence shall run consecutively but concurrently to the sentence in Idaho; 196 days credit for time served; Dangerous Offender.

On December 6, 1990, 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 Mark English, of the Montana Defender Project. The state was represented by Betty Wing, Deputy County Attorney from Missoula, Montana.

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 if such is possible. 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.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to twenty (20) years for Sexual Intercourse Without Consent plus ten (10) years for the use of a weapon to run consecutively but concurrently to the sentence in Idaho; 196 days credit for time served; Dangerous Offender.

The reason for the decision is because the Sentence imposed by the District Judge exceeds the maximum allowable by statute. It is obvious that the District Court intended to impose the maximum which is twenty (20) years and that is the sentence that has been imposed by the Sentence Review Division. In addition, the sentence is amended to provide that the reasons for the dangerous designation appear from the face of the Judgment, and that is that the Defendant is convicted of a violent offense against a person, the rape, and that that violent offense was committed with a weapon. Even though the Judgment itself did not state the reasons for the dangerous designation, that determination is affirmed by this Division. Another reason for the dangerous designation is the fact that there was a prior felony within five (5) years of this offense.

DATED this 6th day of December, 1990.