State v. Wymore , 354 Mont. 15 ( 2009 )

On August 25,2008, the defendant was sentenced to a commitment to the Department of Public Heath and Human Services for a period of five (5) years, for violation of the conditions of a suspended sentence, for the offense of Aggravated Assault, a felony.

On October 9, 2008, the Montana State Hospital Forensic Review Board conducted a review of defendant’s progress and recommended that defendant be transferred to the Montana State Prison for the remainder of his sentence as he had reached maximum hospital benefits.

On February 12,2009, 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 Eric Olson. 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 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 12th day of February, 2009.

DATED this 27th day of February, 2009.

Chairperson, Hon. Stewart Stadler, Member, Hon. Blair Jones and Member, Richard Simonton.