
    STATE OF MONTANA, Plaintiff, vs. ANTHONY L. MUELLER, Defendant.
    NO. Dc-92-008B
    DECISION
    DATED this 23rd day of October, 1992.
   On February 22, 1992, the Defendant was sentenced to ten (10) years for Theft; credit is given for 65 days time served; the corut recommends the defendant serve his term at the Swan River Youth Forest Camp.

On October 23, 1992, 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 Susan Aaberg-First, Legal Intern from the Montana Defender Project. 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 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, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to five (5) years with three (3) years suspended; 65 days credit for time served; the court recommends that the defendant serve his term at Swan River Youth Forest Camp.

The reason for the amended judgment is in the interest of justice and also to prevent a grave miscarriage of justice in that the record reflects that the Defendant plead guilty to a felony charge when the facts only support a conviction for a misdemeanor. Specifically, the amount of money that was alleged stolen was only $300.

Furthermore, this board would recommend that upon the Defendant’s release from the Montana State Prison that he pursue post-conviction relief and have the record reflect that his conviction was for misdemeanor theft and not felony theft.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert Boyd and Hon. Mark P. Sullivan, Judges.

The Sentence Review Board wishes to thank Susan Aaberg-Firth, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.  