
    STATE OF MONTANA, Plaintiff, vs. DENISE NEBEL, Defendant,
    No. BDC-99-465
    Decision
   On January 11, 2006, the defendant was sentenced to the following, for violation of the conditions of a suspended sentence, for the offenses of Theft, all felonies: Count I: Four (4) years in the Montana State Prison; Count II: Ten (10) years in the Montana State Prison; and Count III: Ten (10) years in the Montana State Prison, with five (5) years suspended. These counts shall run consecutive. Counts IV through X: Ten (10) years in the Montana State Prison, on each count, all time suspended, to run concurrent with each other and concurrent with the sentences received on Counts I, II and III.

On April 7, 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 John Smith. 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 fiirther advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

The Division finds that the reasons advanced for modification are sufficient to hold that the incarceration sentence imposed by the District Court is clearly excessive in light of the magnitude of the amount of victim restitution owing and the Defendant’s concomitant obligation to pay victim restitution. Since the original judgment, while on probation, the defendant has made restitution payments of nearly 45% of the total amount owed. The modification will afford the defendant a greater opportunity to continue making monthly payments towards the restitution obligation than would be made while the Defendant is incarcerated.

DATED this 14th day of April, 2006.

Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended as follows: Count I: Four (4) years in the Montana State Prison; Count II: Ten (10) years in the Montana State Prison; and Count III: Ten (10) years in the Montana State Prison. The sentence for Count III shall be completely suspended. Counts I, II, and III shall run consecutively to one another. Counts IV through X: Ten (10) years in the Montana State Prison, on each count, all time suspended, to run concurrent with each other and concurrent with the sentences received on Counts I, II and III. The conditions and restitution requirements shall remain as imposed in the original sentencing order dated January 19, 2001.

Done in open Court this 7th day of April, 2006.

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