
    From: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. JAMES SWANK, Defendant,
    CAUSE NO. CDC-03-202 DECISION
   On March 3,2009, the defendant was sentenced, for violation of the conditions of a suspended sentence, to a commitment to the Department of Corrections for a period of four (4) years, with two (2) years suspended, for the offense of Count I: Assault With a Weapon, a felony.

On November 12, 2009, 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 Eric Olson. 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.

A major question in this case is whether the defendant shall be given credit for the eleven (11) months that was served in Yellowstone County Detention Center on the Cascade County case. The Sentence Review Division finds this is more appropriately raised with the sentencing judge in Cascade County and it has not considered that argument.

Done in open Court this 12th day of November, 2009.

DATED this 25th day of November, 2009.

Chairperson, Hon. Stewart Stadler, Member, Hon. Blair Jones and Member, Richard Simonton.  