
    The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. DAVID SMAIL, Defendant.
    CAUSE NO. DC-09-486 DECISION
   On May 3, 2010, the defendant was sentenced to the following: Count I: A commitment to the Department of Corrections for a term of five (5) years, for the offense of Theft, a Felony; Count II: A commitment to the Yellowstone County Detention Facility for the term of six (6) months, for the offense of Unsworn Falsification to Authorities, a Misdemeanor; and Count III: A commitment to the Yellowstone County Detention Facility for the term of six (6) months, for the offense of Unsworn Falsification to Authorities, a Misdemeanor. Counts I, II and III shall run concurrently with each other.

On November 4, 2010, 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 Jori Frakie. 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 washed to proceed.

Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that “the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (§46-18-904(3), MCA).

The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 4 th day of November, 2010.

DATED this 18th day of November, 2010.

Chairperson, Hon. Blair Jones, Member, Hon. Richard Simonton and Member, Hon. Ray Dayton.  