
    STATE OF MONTANA, Plaintiff, vs. Brant Gilbert, Defendant.
    NO. DC 93-590
    DECISION
   On June 8, 1994, the said Brant Gilbert had been duly convicted in this Court of the crime of Attempt (Deliberate Homicide) Felony; it is therefore ordered, adjudged and decreed that the said Brant Gilbert be punished by imprisonment in the Montana State Prison at Deer Lodge, Montana, for the term of thirty-five (35) years to run concurrently with the sentences received in criminal cause numbers DC 93-037 & 93-061. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, from December 23,1993 through May 8,1994, for 168 days. It is further ordered that because the defendant, while engaged in the commission of the offense of Attempt (Deliberate Homicide) Felony, knowingly used a firearm, to wit: a shotgun; he is hereby sentenced to the term of ten (10) years in the Montana State Prison under the authority of 46-18-221, Montana Code Annotated. This term of imprisonment shall be served consecutively with the term imposed for the commission of the crime of Attempt (Deliberate Homicide) felony, as charged in the Information. It is further ordered that defendant shall not be eligible for parole and placement in any supervised release program for the first ten (10) years of the sentence imposed in this case pursuant to 46-18-202 (2), Montana Code Annotated. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the treasurer of this County. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court.

DATED this 4th day of June, 1996.

On May 23,1996, 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 Lucas Foust, legal intern of the Montana Defender Project. The state was represented by Dennis Paxinos, County Attorney from Billings.

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 to 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 provides: "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." (Section 45-18-904(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.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Lucas Foust, legal intern of the Montana Defender Project for representing Brant Gilbert in this matter and also Dennis Paxinos, County Attorney from Billings, for representing the State.  