On August 19, 2004, the defendant was sentenced to the following: Count I: Thirteen (13) month commitment to the Department of Corrections for placement at the WATCh Program, followed by a Five (5) year suspended sentence to the Montana State Prison, for the offense of DUI, a Fourth or Subsequent Lifetime Offense, a felony; and Count II: A Six (6) month commitment, to the Lewis and Clark County Jail, with all time suspended but two (2) days, for the offense of Driving While License is Suspended/Revoked, a misdemeanor, to run concurrent with Count I.
On March 7,2005, 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 Jeremy Gersovitz. 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 7th Day of March, 2005.
DATED this 31st day of March, 2005.
Chairperson, Hon. Gary L. Day, Member, Hon. John W. Whelan and Member, Hon. Randal I. Spaulding.