
    STATE OF MONTANA, Plaintiff, vs. MICHELLE L. HERD, Defendant.
    No. DC-01-37
    Decision
   On July 14, 2004, the defendant was sentenced to the following: Count L Twenty (20) years in the Montana Women’s Prison, with Fifteen (15) years suspended, for the offense of Negligent Homicide, a felony; Count II: Twenty (20) years in the Montana Women’s Prison, with all time suspended, for the offense of Negligent Homicide, a felony; Count III: Twenty (20) years in the Montana Women’s Prison, with all time suspended, for the offense of Negligent Homicide, a felony; and Count IV: Twenty (20) years in the Montana Women’s Prison, with all time suspended, for the offense of Negligent Homicide, a felony. Counts I & II shall run concurrent to each other and consecutive to Counts III and IV. Counts III & IV shall run concurrent to each other and consecutive to Counts I & II.

On September 24, 2004, 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 Kenneth Olson. 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 she understood this and stated that she wished to proceed.

The Sentence Review Division finds that the reasons advanced for modification are sufficient to hold that the sentence imposed is clearly excessive as it exceeds the scope of the remand from the Montana Supreme Court. The conditions imposed on the suspended sentence, with respect to using or possessing alcohol, are not based upon any factual evidence in the record. The Division also considered the circumstances of the offense, as reflected in the evidence of the Pre-Sentence Investigation Report, and the defendant’s lack of any criminal history.

Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified as follows: Count I: Commitment of Twenty (20) years to the Department of Corrections, with all time suspended; Count II: Commitment of Twenty (20) years to the Department of Corrections, with all time suspended, to run concurrent to Count I; Count III: Commitment of Twenty (20) years to the Department of Corrections, with all time suspended, to run concurrent to Counts I and II; and Count IV: Commitment of Twenty (20) years to the Department of Corrections, with all time suspended, to run concurrent to Counts I, ÍI, and III. Conditions of the suspended sentence are those conditions set forth in the sentencing order of August 30, 2004, with the following exceptions: Conditions #6, #7, and #8 are deleted. The supervision fees required under condition #18 shall be set at $15.00 per month. The restriction on driving is also modified to restrict the defendant from operating a motor vehicle or applying for a driver’s license for a period of Five (5) years, beginning with the date of the original sentence in this matter of April 26, 2002.

DATED this 19th day of October, 2004.

Done in open Court this 24th day of September, 2004.

Chairperson, Hon. Marc G. Buyske, Member, Hon. Gary L. Day and Member, Hon. John Whelan.  