Decision

On July 25, 2001, the defendant was sentenced to the following: Count I: Ten (10) year commitment to the Department of Corrections, with five (5) years suspended, for the violations of the conditions of a suspended sentence for the offense of Burglary, a felony; and Count II: Five (5) year commitment to the Department of Corrections for violations of the conditions of a suspended sentence for the offense of Attempt (Theft), a felony, to run concurrently with the sentence imposed in Count I.

On October 12, 2001, 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 Ben Anciaux. 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.

Ride 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. However, the Board remands this case to the district court to consider the defendant's argument that he should be given credit for the two (2) years in custody on his Missoula County sentence, which was to run concurrent with the sentence at issue.