On September 24, 2003, the defendant was sentenced to Five (5) years in the Montana State Prison for violation of the conditions of a suspended sentence for the offense of Theft, a Felony.
On August 12, 2004, 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 Heather Latino. 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.
The Sentence Review Division finds that the reasons advanced for modification are sufficient to hold that the sentence imposed as a result of the revocation petition filed in March 2003, is clearly excessive. The incidents, which were noted as the basis of the revocation, were matters *66previously being dealt with by the Department of Corrections through its then probation officer, Officer Hodge. Officer Hodge retired in March of 2003. The new probation officer determined that those items should be a basis for revocation. Given that circumstance, the Sentence Review Division believes that a commitment to the Montana State Prison is clearly excessive.
DATED this 3rd day of September, 2004.Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified to a Five (5) year suspended sentence. The conditions of the suspended sentence remain the same as imposed in the September 24, 2003 sentence.
Done in open Court this 12th day of August, 2004.
Chairperson, Hon. Marc G. Buyske, Member, Hon. Gary Day and Member, Hon. John Whelan.