
    STATE OF MONTANA, Plaintiff, vs. DANIEL R. NIEMAN, Defendant,
    No. ADC-97-183
    Decision
   On June 26, 1998, the defendant was sentenced to ten (10) years in the Montana State Prison for the offense of Assault, a felony; and two (2) years in the Montana State Prison for the use of a weapon during the commission of the offense. The terms shall run consecutively with each other. Credit given for time already served, a total of 196 days.

DATED this 17th day of March, 2006.

On June 24,1999, the defendant was resentenced to ten (10) years in the Montana State Prison for the offense of Assault, a felony. Credit given for time already served, a total of 561 days. The additional two (2) year consecutive sentence to the Montana State Prison for the commission of an offense with a weapon was deleted, pursuant to State v. Guillaume, 56 State Reporter 117.

On March 6, 2006, 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 Melody Brown. 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 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 and remanded to district court for purposes of applying the credit mandated by State v. Fisher.

Done in open Court this 6 th day of March, 2006.

Chairperson, Hon. John W. Whelan, Member, Hon. Randal I. Spaulding and Member, Hon. Katherine Irigoin.  