
    FROM: THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT, COUNTY OF MISSOULA.
    STATE OF MONTANA, Plaintiff, vs. FORTINO VALENCIA Defendant.
    NO. 8684 DECISION
   On July 14,1989 the Defendant was sentenced to five (5) years for Count I, Criminal Possession of Dangerous Drugs; and Twenty (20) years with five (5) years suspended for Count II for Criminal Possession of Dangerous Drugs with Intent to Sell. If the defendant returns to the United States during this period of probation he will be held in violation of probation. The sentences shall be served consecutively and he shall be given 131 days credit for time served; dangerous designation.

DATED this 3rd day of August, 1990.

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 Joylyn Smith of the Montana Defender Project. The state was not represented.

Mr. Valencia is an Immigrant from Mexico and is unable to speak English. Therefore, Father Henry Cabong, pastor at the Montana State Prison, was present to act as interpreter during the hearing.

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 of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is based upon the presumption of the validity of the District Court Judgment.

DISSENT:

The Honorable Robert Boyd

dissents. He would have amended the sentence to change the status designation from Dangerous to Non- dangerous. This would have conformed with the recommendation in the pre-sentence report.  