State v. Fiske , 386 Mont. 39 ( 2016 )

DECISION

On February 4, 2016, the Defendant’s previous sentence for Partner or Family Member Assault, a felony, in violation of §45-5-206(1)(a) MCA, was revoked and he was resentenced to the Department of Corrections for four (4) years. It was the recommendation of the Court that Defendant be screened for community placement and upon acceptance, follow all requirements and provisions. If not accepted, the Defendant was ordered to be placed at a DOC facility at the discretion of the department. The Court found that the Defendant was not entitled to receive credit for elapsed time while not incarcerated based on his failure to comply with terms and conditions of the sentence while under supervision. Defendant was given credit for pre-trial detention from May 27, 2015 through February 4, 2016.

On May 5, 2016, the Defendant’s Application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court (hereafter “the Division”).

Done in open Court this 5th day of May, 2016. DATED this 10th day of June, 2016.

The Defendant was present and was represented by Peter Ohman of the Office of the State 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).

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 is AFFIRMED.

Hon. Brenda Gilbert, Chairperson, Hon. Brad Newman, Member and Hon. Kathy Seeley, Member.