On March 11, 1997, it was the judgment of the Court, with respect to Count I - Criminal Possession with Intent to Sell, a felony and Count II - Criminal Possession with Intent to Sell, a felony that the defendant Kirk Wayne Bay is hereby sentenced, for each such count, to a term of twenty (20) years in the Montana State Prison in Deer Lodge, Montana. That, however, ten (10) years of defendant’s sentence for each such count, Count I and II, is hereby suspended on the terms and conditions of probation set forth in the March 11,1997 judgment. It is the judgment of the court, with respect to Count III - Use or Possession of Property Subject to Criminal Forfeiture, a felony, that the defendant Kirk Wayne Bay is sentenced to a term of ten (10) years in the *107Montana State Prison, no part of which is suspended. Furthermore, it is ordered that the defendant shall forfeit to the Sanders County Drug Fund all of the defendant’s right, title and interest in a 1993 Isuzu Rodeo vehicle, VIN #4S2CY58V7P4313850 and shall further forfeit to the Sanders County Drug Fund all of the contents of said vehicle seized pursuant to the Search Warrant. Further, it is Ordered that the defendant shall sell a 1989 Bayliner boat and trailer currently titled in defendant’s name, and defendant shall apply the proceeds of that sale towards the balance of the lien against the 1993 Isuzu Rodeo vehicle, which lien is in favor of the First State Bank of Thompson Falls, Montana. Defendant shall pay the mandatory Twenty-Five Dollar ($25.00) surcharge for each count. The sentences for all three counts shall run concurrently. Defendant shall receive credit for one (1) day time already served in the Sanders County Jail as of the date of this judgment.
DATED this 5th day of November, 1997.On October 16, 1997, 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 proceeded Pro Se. 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, it is the decision of the Sentence Review Division that the sentence shall be suspended.
In light of the fact there was no pre-sentence investigation done, and it was the defendant’s first felony offense, it is the view of the Sentence Review Division that the sentence be amended.
Done in open Court this 16th day of October, 1997.
Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal.
The Honorable Richard Phillips dissents. It is Judge Phillips opinion that since there was a plea agreement which the defendant agreed with, the sentence should remain the same.
Member, Hon. Richard Phillips
The Sentence Review Board wishes to thank Kirk Wayne Bay for representing himself in this matter.