
    FROM: THE DISTRICT COURT OF THE TWENTIETH JUDICIAL DISTRICT, COUNTY OF LAKE.
    STATE OF MONTANA, Plaintiff, vs. ROGER LEE GARDIPEE, Defendant.
    NO. DC-88-66 DECISION
    DATED this 3rd day of August, 1990.
   On January 31,1990, the Defendant was sentenced to five (5) years for the revocation of Criminal Possession of Dangerous Drugs; he was given 35 days credit for time served and was designated as a Dangerous Offender.

On August 3, 1990, 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 Cath Steger, of the Montana Defender Project. 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 to increase it if such is possible. 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.

After careful consideration, there was a split decision by the members of the Sentence Review Board. The five (5) years for the revocation of Criminal Possession of Dangerous Drugs shall remain the same as imposed, however, the Dangerous Designation shall be changed to Non- Dangerous. The defendant shall be given 35 days credit for time served.

The reason for the decision is based upon State v. Nelson, 246 Montana Reports, (Sentence Review Division), 1990. The change in designation from non-dangerous to dangerous after the date of the offense amounted to an ex post facto application of the law to the detriment of the defendant.

Acting Chairman, Hon. Bart Erickson,

DISSENT:

The Honorable Ed McLean

dissents. He would have left the sentence as originally imposed by Judge McNeil, based upon the presumption of the validity of the District Court Judgment.  