On April 19, 1995, the Court ordered that the defendant shall be punished by confinement in the Montana State Prison for a term of ten (10) years, with five (5) years suspended. The defendant shall receive credit for time served in the Lake County Jail, which as of the date of this judgment totals seventy-five (75) days. The Court at this time does not make a designation of the defendant as a dangerous or non-dangerous offender for purposes of parole eligibility. The Court further orders that the suspended portion of the sentence shall be upon conditions as stated in the April 19, 1995 judgment. The Court further orders that the defendant shall be responsible for restitution to the victim of the offense: Total Home, 719 Highway 93 North, Ronan, Montana 59864, in the amount of One Thousand Two Hundred Thirty-Six Dollars ($1,236.00). The Court further orders that the defendant shall be fined the sum of Four Hundred Dollars ($400.00), which is suspended. The Court further orders that the defendant shall pay surcharge of Forty Dollars ($40.00), as required by law. The Court further orders that the defendant shall pay the mandated supervisory fee of One Hundred Twenty Dollars ($120.00) per year, prorated at Ten Dollars ($10.00) per month, for the number of months under supervision. Payments on the fee shall be made in the amount of Thirty Dollars ($30.00) per quarter to the Clerk of the District Court. The Court further orders that the restitution and surcharge shall be paid to the Clerk of the District Court in monthly payments as determined by his probation officer, which payments shall commence thirty (30) days after the defendant’s release from the Montana State Prison, and shall be paid in full no later than one (1) year prior to his discharge from parole/probation.
On August 4, 1995, 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 Chad Wright, Legal Intern from the Montana Defender Project. 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 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.
After careful consideration, there is a split decision of the Sentence Review Division. The Honorable Ed McLean and Honorable Ted Lympus vote to affirm the sentence as originally imposed.
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.
The Honorable Jeffrey Sherlock dissents. He would reduce the sentence to make the defendant parole eligible immediately.
Done in open Court this 4th day of August, 1995.
Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.*75The Sentence Review Board wishes to thank Chad Wright, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.