
    STATE OF MONTANA, Plaintiff, vs. DAVID M. SMITH, Defendant.
    No. DC-02-316
    Decision
   On September 18, 2003, the defendant was sentenced to the following: Count I: A commitment of six (6) months in the Missoula County Detention Center, for the offense of Theft, a misdemeanor; and Count II: Ten (10) years in the Montana State Prison, to run concurrently with Count I, for the offense of Theft, a felony. Defendant is ineligible for parole on Count II.

On August 8, 2005, 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 Scott Spencer. 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.

The Division finds that the reasons advanced for modification are sufficient to hold that the sentence imposed by the District Court is clearly excessive only that there is no need for a parole ineligibility period.

Therefore, it is the unanimous decision of the Sentence Review Division that sentence shall be affirmed and omit any parole ineligibility condition. The remaining terms and conditions shall remain as imposed in the September 18, 2003 Judgment.

Done in open Court this 8th day of August, 2005.

DATED this 17th day of August, 2005.

Chairperson, Hon. Gary L. Day, Member, Hon. John Whelan and Member, Hon. Randal I. Spaulding.  