text:
    From: The District Court of the Eighth Judicial District, County of Cascade,
    STATE OF MONTANA, Plaintiff vs. THOMAS EDWARD REDMOND, Defendant.
    No. ADC-84-165b
    DATED this 2nd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 40 years for Attempted Deliberate Homicide; 5 years for Persistent Felony Offender; and 5 years for the Use of a Dangerous Weapon; All sentences shall be served consecutively for a total of 50 years imposed on February 26, 1985, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Patti Jensen of the Montana Defender Project for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


source: Caselaw Access Project

license: Public Domain

text:
    From: The District Court of the Eighth Judicial District, County of Cascade,
    STATE OF MONTANA, Plaintiff vs. YVETTE M. OWENS, Defendant.
    No. CDC-86-003
    DATED this 2nd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 5 years for Deceptive Practice imposed on August 6, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Steve Hagerman, Deputy County Attorney from Cascade County for appearing before the Sentence Review Board on behalf of the State of Montana.

We wish to thank Pete Carroll of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Fifteenth Judicial District, County of Roosevelt,
    STATE OF MONTANA, Plaintiff vs. ARROW WEINBERGER, Defendant.
    No. 1035-C
    DATED this 2nd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 70 years for Deliberate Homicide plus 10 years for the use of a weapon to be served consecutively imposed on April 8, 1982, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

While the Court was impressed with Defendant’s graphic presentation, it was inadmissible under the Commission Rules. The presentation consisted of evidence and argument already considered by the jury and the sentencing judge.

We wish to thank J.C. Weingartner, Attorney at Law, from Helena, for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eighteenth Judicial District, County of Gallatin,
    STATE OF MONTANA, Plaintiff vs. BRYAN LANTIS MERCER, Defendant.
    DATED this 2nd day of April, 1987.
    No. 4138
   DECISION

The application of the above-named defendant for a review of the sentence of 20 years for Aggravated Assault; to be served consecutive with a prior sentence in 1972 for Homicide; and the Defendant shall be ineligible for Parole and Prison Furlough Programs; and shall be DESIGNATED AS A DANGEROUS OFFENDER imposed on November 26, 1979, was fully heard and after a careful consideration of the entire matter it is decided that: the Sentence Review Board unanimously affirmed Judge Lessley’s decision. The sentence shall remain the same as originally imposed.

The motion presented to the Court by County Attorney Mike Salvagni, is hereby denied.

We wish to thank Mike Salvagni, County Attorney from Bozeman for appearing before the Sentence Review Board.

We also wish to thank Mr. Bryan Mercer for presenting his case to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


author: HONORABLE JUDGE THOMAS HONZEL

text:
    From: The District Court of the Eighth Judicial District, County of Cascade,
    STATE OF MONTANA, Plaintiff vs. LESTER SMITH, Defendant.
    No. CDC-86-089
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Burglary, 7 years, Count II, Theft, 7 years; the sentences shall be served concurrently with 36 days credit for time served imposed on August 8, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

HONORABLE JUDGE THOMAS HONZEL

DISSENTS: He would have reduced the sentence by suspending three of the seven years. Although the sentencing court had reasons to impose the seven years sentence, based on the Defendant’s record and given the circumstances under which this arose, the County Attorney recommended a deferred sentence. While not mandated, the better practice is to afford a defendant an opportunity to withdraw a plea of guilty if the sentence is contrary to the plea bargain, as was the case here.

We wish to thank Steve Hagerman, Deputy County Attorney, from Cascade County for appearing before the Sentence Review Board.

DATED this 2nd day of April, 1987.

We also wish to thank John Smith of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


author: HONORABLE DOUGLAS HARKIN

text:
    From: The District Court of the Fourth Judicial District, County of Missoula,
    STATE OF MONTANA, Plaintiff vs. MARTIN DOUGLAS MENDENHALL, Defendant.
    No. 6603
    DATED this 2nd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 20 years for Sexual Intercourse without Consent; 10 years for a Persistent Felony Offender; the sentences shall be served consecutive without the benefit of parole or work furlough imposed on June 18, 1984, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

HONORABLE DOUGLAS HARKIN

DISSENTS: He believes that the sentence should be increased by designating him as a DANGEROUS OFFENDER and would also increase the Persistent Felony Offender sentence by 10 years which should be a total of 40 years to serve as a Dangerous Offender. The Petitioner has demonstrated that he cannot be rehabilitated and he should be kept in prison for as long as possible.

We wish to thank Ed McLean, Deputy County Attorney from Missoula for appearing before the Sentence Review Board.

We also wish to thank John Smith of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Fourth Judicial District, County of Missoula,
    STATE OF MONTANA, Plaintiff vs. JOHN ROBERT THORNTON, Defendant.
    No. 7296
   DECISION

DATED this 2nd day of April, 1987.

The application of the above-named defendant for a review of the sentence of 40 years for Deliberate Homicide; plus 10 years for the use of a Weapon; to be served consecutively; plus credit for 153 days served imposed on May 30, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Patti Jensen of the Montana Defender Project for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Fourth Judicial District, County of Missoula,
    STATE OF MONTANA, Plaintiff vs. MICHAEL PAMBRUN, Defendant.
    No. 6564
    DATED this 2nd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 40 years for Robbery + credit for 167 days served imposed on April 30, 1984, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Ed McLean, Deputy County Attorney from Missoula for appearing before the Sentence Review Board.

We wish to thank Margaret Borg, Attorney at Law from Missoula for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eighth Judicial District, County of Cascade,
    STATE OF MONTANA, Plaintiff vs. EUGENE ANDREW AUSTAD, Defendant.
    No. ADC-78-074
   DECISION

The application of the above-named defendant for a review of the sentence for Counts I & II, Deliberate Homicide, Confinement for Life; Count III, Robbery, 40 years; Count IV, Sexual Intercourse without Consent, 40 years; Count V, Aggravated Burglary, 40 years; all to run consecutively; and designated as a DANGEROUS OFFENDER imposed on May 2, 1980, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence imposed by Judge Coder is affirmed except the Sentence Review Board will remove the DANGEROUS OFFENDER DESIGNATION on the grounds that the physical condition of the Defender indicates he is not a danger to society.

DATED this 2nd day of April, 1987.

HONORABLE DOUGLAS HARKIN

DISSENTS: He felt the sentencing judge had substantial evidence to support his determination that the Petitioner was dangerous.

We wish to thank Steve Hagerman, Deputy County Attorney from Cascade County for appearing before the Sentence Review Board.

We also wish to thank Paul Ewers of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Fourth Judicial District, County of Missoula,
    STATE OF MONTANA, Plaintiff vs. GARY JOSEPH SWAN, Defendant.
    No. 3888
    DATED this 2nd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Attempted Rape, remaining balance of 49 ’A year sentence + credit for 258 days served imposed on January 30, 1985, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Ed McLean, the Deputy County Attorney from Missoula for appearing before the Sentence Review Board.

We wish to thank Dave Pengelly of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Robert Boyd, Judges.


text:
    From: The District Court of the Fourth Judicial District, County of Missoula,
    STATE OF MONTANA, Plaintiff vs. ROGER EDWARD MUDD, Defendant.
    No. 7353
   DECISION

DATED this 2nd day of April, 1987.

The application of the above-named defendant for a review of the sentence of 40 years with 20 years suspended + conditions for Sexual Intercourse without Consent; and credit for 27 days served with a DANGEROUS DESIGNATION for purposes of parole eligibility imposed on September 22, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence imposed shall remain 40 years with 20 years suspended plus conditions as set forth in the September 22, 1986 Judgment, however, the DANGEROUS DESIGNATION shall be removed and an additional condition shall be that the Petitioner shall complete the Sex Offender Program at Montana State Prison before he is released.

The reasons for the amendment are:

(1) The amended sentence is justified under the Pre-sentence and the psychological reports which indicate that the Petitioner is not a psychological risk; and

(2) that the Missoula County Attorney’s Office seems to indicate that this type of decision would be the type of protection that they would desire for this individual.

We wish to thank Deputy County Attorney, Ed McLean, from Missoula for appearing before the Sentence Review Board.

As well as Margaret Borg, Attorney at Law from Missoula for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Robert Boyd, Judges.


text:
    From: The District Court of the Fifteenth Judicial District, County of Sheridan,
    STATE OF MONTANA, Plaintiff vs. ALVIN JAMES HOFF, Defendant.
    No. 908
    DATED this 3rd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 40 years for Mitigated Deliberate Homicide; plus 10 years for the use of a weapon to run consecutively; and the last 30 years of said 50-year sentence is suspended + conditions; and a fine of $20,000 to be paid in full on or before 7/1/88 plus court costs of $5,418 imposed on May 15, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the unanimous Judgment of this Court is that Judge Sorte’s incarceration portion of the sentence is affirmed. The $20,000 fine is stricken. Given the defendant’s age and work habits, the fine is not a viable or enforceable type of sentence. The Petitioner must pay the court costs as determined by Judge Sorte based on a schedule to be worked out by his probation officer. The conditions of his sentence are amended as set forth in the Attachment [see below]. We wish to thank Susan Gobbs of the Montana Defender Project for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.

ATTACHMENT TO SENTENCE REVIEW DECISION: April 3, 1987

ALVIN JAMES HOFF

CASE #908

The terms and conditions of probation are:

1. That this Court retain jurisdiction.

2. That the defendant shall never knowingly at any time during the period of this suspended sentence engage in any conduct whatsoever offensive to the laws of the State of Montana, any other states or any of the laws of the United States of America.

3. That during the period of suspension of the sentence, the defendant shall remain under the jurisdiction of this Court and of the Department of Institutions, Division of Adult Parole and Probation of the State of Montana, and that the defendant shall be and is subject to all the rules and regulations of said Department. In the event that the defendant breaches any of the rules of said Department or violates any laws of this State or any other states or the federal government, he shall be subject to immediate arrest and thereupon be brought before this Court to determine if this Court should revoke the suspension of this sentence as in the Judgment of this Court which will then seem proper, lawful, and just.

4. That the defendant shall not sell, buy, use, or be in possession of any alcoholic beverage.

5. That the defendant not enter places selling alcoholic beverages for on-premises consumption.

6. Immediately enter and successfully complete in-patient alcoholism treatment program to be followed by aftercare program including half-way house, counseling, AA attendance and monitored antibuse if necessary.

To obtain the objective of protecting society, the Court further prohibits the defendant from owning or carrying a dangerous weapon during the term of this sentence.

The defendant is allowed credit for time served in the Sheridan County Jail prior to this release on bail.

The Court further orders that should the defendant become eligible for parole that the following be included in the defendant’s terms of parole:

1. That the defendant shall never knowingly at any time during the period of parole engage in any conduct whatsoever offensive to the laws of the State of Montana, any other states or any of the laws of the United States of America.

2. That during the period of parole, the defendant shall remain under the jurisdiction of this Court and of the Department of Institutions, Division of Adult Parole and Probation of the State of Montana, and that the defendant shall be and is subject to all the rules and regulations of said Department. In the event that the defendant breaches any of the rules of said Department or violates any laws of this State or any other states or the federal government, he shall be subject to immediate arrest and thereupon be brought before this Court to determine if this Court should revoke the suspension of this sentence as in the Judgment of this Court which will then seem proper, lawful, and just.

3. That the defendant shall consent to the reasonable search of his person, premises or automobile whenever required to do so by his probation officer, with or without warrant, upon reasonable cause as ascertained by a Probation/Parole Officer. He shall likewise submit to blood-alcohol tests upon demand at the request of his Parole and Probation Officer.

4. That the defendant shall not sell, buy, use, or be in possession of dangerous drugs or associate with persons who possess or use such dangerous drugs.


text:
    From: The District Court of the Twentieth Judicial District, County of Lake,
    STATE OF MONTANA, Plaintiff vs. ROBERT J. PETERSON, Defendant.
    No. DC-86-107
    DATED this 3rd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 5 years, DANGEROUS designation, for Theft imposed on November 20,1986, was fully heard and after a careful consideration of the entire matter it is decided that: the file shall be remanded back to the Twentieth Judicial District for resentencing or clarification of the sentence.

The Court Minute Entry of the arraignment and sentencing states: “The Court sentences Defendant to five years at MSP, to be served concurrently with a revocation of another sentence.” However, the Judgment and Commitment Order failed to mention the revoked sentence, and the manner as to how the two sentences were to run. This Court was unable to determine the intent of the sentencing judge. The Court also notes the absence of a presentence report or any record written or oral as to what apparently was a plea bargain. The record was insufficient for any meaningful review of the sentence as mandated.

We wish to thank Les Ocks of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Second Judicial District, County of Deer Lodge,
    STATE OF MONTANA, Plaintiff vs. MICHAEL JOSEPH KRISKOVICH, Defendant.

      No. DC-83-10
    DATED this 3rd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Deliberate Homicide, 100 years plus 10 years for the use of a weapon, to be served consecutively; Count II, Deliberate Homicide, 100 years plus 10 years for the use of a weapon to be served consecutively; Count I and Count II shall be served concurrent to each other imposed on September 26, 1983, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

The Sentence Review Board shall clarify the wording in the original Judgment. The Defendant shall serve 100 years for Count I, Deliberate Homicide, plus 10 years for the use of a weapon, to be served consecutively; 100 years for Count II, Deliberate Homicide, plus 10 years for the use of a weapon, to be served consecutively; Count I and Count II shall be served concurrent to each other, therefore the Petitioner shall serve a total of 110 years in the Montana State Prison and shall be designated as a nondangerous offender.

HONORABLE DOUGLAS HARKIN

DISSENTING: He would have designated the defendant a DANGEROUS OFFENDER because it was his second offense involving the use of a firearm.

We wish to thank Colleen Ambrose of the Montana Defender Project for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


author: MR. JUSTICE HARRISON

text:
    ERNEST FILLER and Irene Filler, husband and wife, Plaintiffs and Appellants, v. JERRY McDANIEL and Marjorie A. McDaniel, husband and wife, Defendants and Respondents.
    No. 87-221.
    Submitted Dec. 8, 1987.
    Decided Dec. 31, 1987.
    747 P.2d 1365.

      Christine Cooke-Dosen argued, Hardin, for plaintiffs and appellants.
    Ryan Willett argued, Billings, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The plaintiff-appellants, Ernest and Irene Filler, appeal a District Court judgment from the Sixteenth Judicial District, County of Rosebud. The judgment determined that defendant-respondents, Jerry and Marjorie McDaniel are the proper owners of a parcel of real property located in Rosebud County, Montana. We reverse and remand.

On December 16, 1983 Ernest and Irene Filler purchased 140 acres of real property from defendant-appellants William and Charlotte Bell. The conveyance described the land as follows:

“The East Half of the East Half (EV^ EVá) of Section Eleven (11), Township Six (6) North, of Range Thirty-nine (39) East, M.P.M.” [Minus twenty acres previously sold by the Bells which is not relevant to this action.]

The property in dispute lies to the south of the above described property and constitutes 16.008 acres. The land was formed due to a gradual change in the course of the Yellowstone River and the Fillers contend they took title to the land when they purchased the 140 acres from the Bells.

The roots of this dispute were first formed with a United States Government survey in 1879. That survey shows that in 1879 the land south of that purchased by the Fillers was covered by the Yellowstone River. At that particular time, the north waterline of the Yellowstone also extended to a small portion of the southeast corner of the land purchased by the Fillers — the East Half of the East Half of Section 11. Due to the natural forces of nature, the north waterline of the Yellowstone is now much further to the smith. The result is that additional dryland now appears to the north of the Yellowstone.

The Bells purchased a significant amount of land in 1980 which included the land involved in this dispute. The notice of purchaser’s interest described the property as follows:

“Township 6 North, Range 39 East, MPM, Rosebud County, MT
“Sec. 11: Lot 1, NEW SEW, EVi NEW
“Sec. 12: Lot 2, 3, & 4, That part of NW NWW lying southerly of Milwauke[e] Railroad right-of-way, SW NWW, That part of SEW SWW and SWW SEW lying southerly of river channel.
“Sec. 13: Lots 2, 3, 4, 6, 7, 8, & 9
“Sec. 14: Lot 1
“Together with all accreted lands and riparian rights.”

The description specifically addresses accreted lands and the property is described in terms of “Lots.” Lot 1 of section 11 is surveyed in the 1879 survey so as to include the north bank of the Yellowstone as its south boundary line. The Bells received rights to accreted land by the above conveyance. However, at trial the defendant’s son, Conrad Bell, testified the Bell family believed the land south of Section 11 belonged to the Bureau of Land Management.

When the Fillers purchased land from the Bells in December of 1983, the parcel was described as the East Half of the East Half of Section 11, Township Six (6) North, of Range Thirty-nine (39) East, M.P.M. (minus 20 acres not involved in this case). The description does not address accreted lands and the description makes no reference to a “Lot 1” which would have the southern boundary as the Yellowstone. Although the description is set out as a particular portion of land with all four boundaries ascertainable by section lines, the land as described would include all of Lot 1 as surveyed in 1879.

In June of 1984, the Bells sold a tract of land to the east of the Fillers’ property to defendants Jerry and Marjorie McDaniel. Subsequently, a dispute arose as to the ownership of the land directly south of the Fillers’ property and the Fillers attempted to fence the property. The fence allegedly strayed somewhat to the east and was removed by the McDaniels. A survey was conducted in September 1984 which concluded that due to the change in the course of the Yellowstone River, an additional 16.008 acres appeared between the north waterline of the Yellowstone and the south boundary of the Fillers’ property. The Bells concluded that the accreted land belonged to them because they conveyed only a specific portion of land to the Fillers. The Bells then sold the 16.008 acres to the McDaniels.

The Fillers alleged their purchase included any accreted lands to the south and filed a quiet title action March 25, 1985. A bench trial was held February 19, 1987. The District Court concluded the Bells had not conveyed the accreted land to the Fillers and the McDaniels were the proper owners of the accreted land by virtue of their purchase from the Bells. Additionally, the District Court awarded defendants attorney’s fees. The Fillers appeal and present two issues for review:

(1) Did the District Court commit error in determining that the McDaniels owned the parcel of property created by a shift in the course of the Yellowstone River?

(2) Did the District Court correctly award defendants attorney’s fees?

Defendants contend that the Fillers were specifically conveyed only the land within the East Half of the East Half of Section 11, Township Six (6) North, or Range Thirty-nine (39) East, M.P.M. (minus twenty acres not involved in this case), and all boundaries of the land are readily determinable by section lines and according to this description. The conveyance to the Fillers made no description in terms of “Lots” or by using the river as a boundary. Defendants conclude that the Fillers only acquired an ownership interest on the land described in the conveyance and the 16.008 acres of additional land is not in that description.

The Fillers contend they are the proper owners of the land and that the District Court decision must be reversed according to the law of accretion. “Accreted lands” are “additions to the area of real estate from the gradual deposit, by water, of solid material, whether mud, sand, or sediment, producing dry land which before was covered by water . . . “ Bode v. Rollwitz (1921), 60 Mont. 481, 491, 199 P. 688, 691. See also, 78 Am.Jur.2d Waters Section 406 (1975). Expert testimony at trial indicated the property in dispute was created by accretion, and the District Court found that the land accreted to Lot 1. Additionally, neither party challenges the proposition that the land was created by accretion. Therefore, we conclude that the disputed property was created by the accretion process and that the law of accretion applies.

The Fillers explain that the evidence indicates that the 16.008 acres accreted to Lot 1 of Section 11 and that the District Court agreed with this in finding of fact number VI. Although they were not conveyed property described as “Lot 1,” they were conveyed property which entirely encompassed Lot 1. Stated differently, the 140 acres purchased includes the entire parcel of land designated as Lot 1 in the 1879 survey. When the property description includes a designation of Lot 1 it implies that the southern border to the land constitutes the north waterline of the Yellowstone because that is the boundary structure of the 1879 survey.

The Fillers state that the general rule regarding accreted land is that “[u]nless excepted or reserved, accretions or the right thereto pass to a purchaser or a patentee although not described in the deed or other instrument of conveyance, if the conveyance describes the adjoining riparian land.” Smith v. Whitney (1937), 105 Mont. 523, 528, 74 P.2d 450, 453. Since the conveyance did not reserve accretions to the Bells and the described property completely encompasses what was described as “Lot 1,” the Fillers conclude they purchased the accreted land along with their purchase of 140 acres. Therefore, the subsequent conveyance to the McDaniels is void because the Bells had already conveyed the property to the Fillers. The Fillers emphasize that the Bells made no reservation of accreted lands in the conveyance and that the Bells were not aware that the accretion process had created additional dryland.

The Fillers have correctly stated the general rule as set forth in the Smith case. A conveyance of riparian upland property includes all accreted lands unless excepted or reserved by the conveyance. This is and has been the applicable law regarding accretion in Montana. This rule is also addressed in Section 70-18-201, MCA, which states:

“Where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right-of-way over the bank.”

We considered a similar issue in Jackson v. State (1979), 181 Mont. 257, 593 P.2d 432. Jackson addressed the question of whether a contract for deed effectively conveyed accreted land when the deed described the conveyed property by sections. Although the deed description included accretions within the section line description, it did not contain any reference to additional accreted land outside the boundaries described. The deed did not reserve or except any additionally accreted lands. Appellants in Jackson argued that the accreted lands outside the section lines were not conveyed by the deed. This Court refused the appellants’ argument and affirmed the holding in Smith by stating “accreted lands pass with the riparian upland property unless excepted or reserved.” Smith, 181 Mont. at 266, 593 P.2d at 436.

We find that the Jackson case controls the current dispute. The conveyance from Mr. Bell to the Fillers did not except or reserve any accreted land. Therefore, title to any land which has accreted to that purchased by the Fillers passes to the Fillers. The subsequent sale from the Bells to the McDaniels is void.

The Fillers also appeal the award of attorney’s fees to the defendants, the McDaniels and the Bells. Defendants based their claim for attorney’s fees on a provision in the contract for deed between the Fillers and the Bells. That provision states that if “any litigation is necessary to enforce any provisions of this contract, then the successful party shall be entitled to all costs of suit and reasonable attorney’s fees.” Since the first issue is reversed, the award of attorney’s fees must also be reversed. Additionally, we note the McDaniels were not parties to the contract for deed and that a claim for attorney’s fees by the McDaniels could not be based on that contract.

For the foregoing reasons, we reverse and remand to the District Court for entry of judgment in accordance with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, WEBER, HUNT, GULBRANDSON and McDONOUGH concur.


text:
    From: The District Court of the Thirteenth Judicial District, County of Yellowstone,
    STATE OF MONTANA, Plaintiff vs. ROBERT LEON CONDON, Defendant.
    No. 86-110
    DATED this 3rd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 30 years for Sexual Intercourse without Consent; DANGEROUS DESIGNATION imposed on September, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Diane Davey of the Montana Defender Project for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eleventh Judicial District, County of Flathead,
    STATE OF MONTANA, Plaintiff vs. ALAN JOHN JOHNSON, Defendant.
    No. DC-85-133b
    DATED this 3rd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 5 years for Criminal Possession of Dangerous Drugs + 1 day credit for time served; Swan River Recommendation imposed on March 13,1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Paul Ewers of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Seventh Judicial District, County of Richland,
    STATE OF MONTANA, Plaintiff vs. JAMES GREGORY POULOS, Defendant.
    No. 1936
    DATED this 3rd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 5 years for Custodial Interference plus credit for time served, imposed on August 25, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall be amended to one (1) year in the Montana State Prison for Custodial Interference plus credit for time served.

Reasons for the Amendment are:

(1) The sentence imposed by sentencing judge is disproportionate to what the Co-Defendant received.

(2) This Court felt it should have been a County Jail Sentence in the first place.

We wish to thank Les Ocks of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eleventh Judicial District, County of Flathead,
    STATE OF MONTANA, Plaintiff vs. TIMOTHY E. “CATFISH” WILSON, Defendant.
    No. DC-86-43a
    DATED this 3rd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Mitigated Deliberate Homicide, 40 years + 10 years for the use of a weapon, to run consecutively; Count II, Mitigated Deliberate Homicide, 40 years + 10 years for the use of a weapon, to run consecutively; Counts I & II are to run concurrently; plus ineligible for parole until 30 years is served - DANGEROUS DESIGNATION - imposed on June 11, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Mark Nord of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


author: THE HONORABLE THOMAS HONZEL

text:
    From: The District Court of the Twentieth Judicial District, County of Lake,
    STATE OF MONTANA, Plaintiff vs. CLIFFORD JAMES RAYMOND, Defendant.
    No. DC-86-111
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Burglary, 10 years; Count II, Theft, 10 years; These sentences are to run concurrently and three years of sentence has been suspended. DANGEROUS OFFENDER DESIGNATION, imposed on November 26, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

THE HONORABLE THOMAS HONZEL

DISSENTING: He would have granted the relief requested by counsel based on the age of the defendant, and the need for drug and alcohol treatment on an inpatient basis, which Judge Honzel would have made as a condition of the Defendant’s sentence before he would be eligible for parole.

DATED this 3rd day of April, 1987.

We wish to thank Terry Mailloux of the Montana Defender Project for assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Nineteenth Judicial District, County of Lincoln,
    STATE OF MONTANA, Plaintiff vs. VINCENT LEROY TUNISON, Defendant.
    No. DC-86-7
    DATED this 3rd day of April, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 7 years with a conditional DANGEROUS DESIGNATION for Attempted Incest imposed on May 5, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Terry Mailloux of the Montana Defender Project for assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    MAY 1987 CALENDAR
    From: The District Court of the Eighteenth Judicial District, County of Gallatin,
    STATE OF MONTANA, Plaintiff vs. SCOTT DANIEL KENNEDY, Defendant.
    No. DC-85-23A
   DECISION

The application of the above-named defendant for a review of the sentence for Counts I & II, Sexual Intercourse Without Consent, 20 years on each count to be served concurrently; Count III, Kidnapping, 10 years; to be served consecutively to Counts I & II plus credit for time served; DANGEROUS DESIGNATION imposed on October 1, 1985, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

DATED this 8th day of May, 1987.

We wish to thank Leanne Schraudner, Attorney at Law, from Bozeman, for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Robert J. Boyd, Judges.


text:
    From: The District Court of the Thirteenth Judicial District, County of Yellowstone,
    STATE OF MONTANA, Plaintiff vs. ROBERT LEE NORRIS, Defendant.
    No. DC-83-121
    DATED this 8th day of May, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Aggravated Kidnapping, 10 years; Count II, Sexual Intercourse Without Consent, 40 years; Count III Sexual Intercourse Without Consent, 40 years; all to be served consecutively; credit for time served imposed on November 15, 1983, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence of the sentencing judge, the Hon. Charles Luedke is affirmed by this Court with Judge Harkin dissenting.

HONORABLE DOUGLAS HARKIN

DISSENTING: Judge Harkin would designate the Petitioner as a Dangerous Offender. The Petitioner’s history indicates that he has a propensity to commit crimes of this nature and that he would do it again when he is released. Judge Harkin would also recommend that the Petitioner never be released.

We wish to thank Pete Carroll of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Thirteenth Judicial District, County of Yellowstone,
    STATE OF MONTANA, Plaintiff vs. CLYDE KENT LEWIS, Defendant.
    No. DC-84-155
   DECISION

DATED this 8th day of May, 1987.

The application of the above-named defendant for a review of the sentence of 30 years for Robbery; to be served consecutively to the sentence out of Cascade County DANGEROUS DESIGNATION imposed on March 14, 1985, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Conde McKay, Attorney from Anaconda, for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Fifteenth Judicial District, County of Sheridan,
    STATE OF MONTANA, Plaintiff vs. DOUGLAS W. WAHL, Defendant.
    No. 849
    DATED this 8th day of May, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 6 years for Theft; plus a fine of $1,800 to be paid within two years of Petitioners release from confinement imposed on October 22, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

The Defendant claimed he was denied counsel at his revocation hearing. The record fails to disclose the Judge’s side of the story. There is not even a minute entry in indicate what the Judge intended. Remanding this Defendant back to the District Court for sentencing with appointment of Counsel would serve no purpose since the Petitioner is approaching his parole date.

See Starkweather v. State of Montana, S.Ct. Order No. 85-566, Dated December 18, 1985.

We wish to thank Larry Ginnings of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Thirteenth Judicial District, County of Yellowstone,
    STATE OF MONTANA, Plaintiff vs. EDWARD ALLEN MULLNER, Defendant.

      No. DC-84-119
    DATED this 8th day of May, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Robbery, 40 years plus 10 years for the use of'a weapon, to run consecutively; Count III, Sexual Intercourse Without Consent, 20 years plus 10 years for the use of a Weapon to run consecutively; Counts I & III shall be served concurrently; credit for time served; DANGEROUS DESIGNATION imposed on December 7, 1984, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Mark Nord of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


author: MR. JUSTICE SHEEHY

text:
    RITA MAE SNYDER, Claimant and Appellant, v. SAN FRANCISCO FEED AND GRAIN, Employer, and EBI Companies and Orion Group, Defendants and Respondents.
    No. 87-263.
    Submitted on Briefs Nov. 13, 1987.
    Decided Dec. 31, 1987.
    Rehearing Denied Feb. 11, 1988.
    748 P.2d 924.

      Trieweiler Law Firm, Terry N. Trieweiler, Whitefish, for claimant and appellant.
    Garlington, Lohn & Robinson, Larry W. Jones, Missoula, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Rita Mae Snyder appeals the judgment of the Workers’ Compensation Court finding that her evidence did not establish a compensable industrial accident. San Francisco cross-appeals on the issue of the propriety of certain hypothetical questions. We reverse.

The issues before the Court are:

1. Was there substantial credible evidence to support the Workers’ Compensation Court’s judgment that Snyder did not suffer a compensable industrial accident?

(a) Does a stress related injury require a “psychological reconstruction?”

(b) Does a compensable injury require a showing of physical impact?

(c) Does a compensable injury have to arise from a single incident?

2. Is the testimony of a treating physician entitled to greater evidentiary weight?

3. Did Rita Mae’s counsel pose improper hypothetical questions?

Rita Mae was 47 years old at the time of her trial in August, 1986. She had been married to Vernon Snyder for 29 years and had six children. Her youngest remained in the family home. Rita Mae can no longer care for her husband or family, however.

On December 31, 1984, Rita Mae suffered a ruptured basilar tip aneurysm while performing her duties at San Francisco Feed & Grain (San Francisco) in Ronan, Montana. As a result of the ruptured aneurysm, Rita Mae suffered extensive brain damage; she is confined to a wheelchair; she has vision deficiencies; her memory has been affected; her reasoning process has been impacted; she engages in inappropriate behavior and laughs or cries for no reason; and she has had a guardian appointed. Her condition is permanent.

Prior to the date of injury, Rita Mae’s family did not have a history of aneurysms. She did not consume alcohol nor was she overweight. She had no history of high blood pressure. She alleges that her aneurysm ruptured as a result of job stress.

Rita Mae began her duties as a bookkeeper with San Francisco in May, 1982. Her duties included helping customers, recording the weight of trucks, answering the phone, balancing the cash register, doing daily sheets, posting receivables, helping with the statements, posting inventory, totaling inventory books, helping total the cost of sales, and occasionally helping proof the computer printouts. She shared these duties with her sister/co-employee, Helen Teigen.

Rita Mae was a conscientious, hard working employee. She was described as dedicated and concerned that her work was current and correct. She seemed happy with her work and never complained.

The situation at San Francisco changed dramatically in June, 1984, however. At that time, a new general manager assumed control of the San Francisco operation in Ronan.

San Francisco employees described the new manager’s style as chaotic and antagonistic. The work place became disorganized. Management-employee relations deteriorated. A change in the procedure for dealing with customers resulted in slower service and unhappy customers. On one occasion, Rita Mae had to call the police to prevent violence between the manager and a disgruntled customer who had been forced to wait several hours.

Rita Mae’s work situation continued to deteriorate. The lack of organization and communication caused the work place to become more frantic. The changed procedures resulted in angry customers and employees. Although Rita Mae was the type of person who was bothered by bickering, she often had to deal with the unhappy customers and smooth employee dissatisfaction.

The seasonal increase in feed purchases during the winter months and a fire at San Francisco’s main competitor further exacerbated the situation. During November and December, 1984, Rita Mae began working through her lunch hour and staying after hours in an attempt to stay current with her work. Although the overtime was not paid, she began to fear she would lose her job, the family’s sole source of income.

Rita Mae’s job situation began to take a toll. She lost her cheerfulness about her job. Friends and family noticed she looked more and more wrung-out. She seemed to be under a lot of pressure from work and always appeared nervous.

The day of her injury was unusual. Since December 31, 1984 was a Monday sandwiched between two days on which the business was to be closed, business was expected to be brisk. Nevertheless, the work force was only 7, rather than the usual 10 employees. In addition, Rita Mae had end-of-the-month bookkeeping to complete.

When she arrived at work that day, Rita Mae appeared fine. She soon looked fatigued, however. She had noted that an upsetting customer was scheduled for servicing that day. She also was having difficulty deciphering one of the manager’s incomplete invoices. The unfinished invoice appeared to upset her. Shortly thereafter, Rita Mae was found slumped over her desk and was later diagnosed as having a ruptured aneurysm.

The medical evidence received at trial consisted of the deposition testimony of 3 neurological specialists. The doctors were instructed to base all opinions on the medical standard of more likely than not. Generally, they are in agreement concerning Rita Mae’s injury.

It is agreed that an aneurysm is a weak spot in a blood vessel analogous to a weak spot in an inner tube which expands and develops a balloon-like appearance; that Rita Mae’s aneurysm developed sometime during her teenage years; that not all aneurysms rupture; that psychological stress elevates blood pressure; that increased blood pressure places increased pressure on the aneurysm, often resulting in rupture; and that intracranial aneurysms can rupture spontaneously without change in vascular pressure.

Dr. Richard Dewey is a neurological surgeon. Dr. Dewey examined Rita Mae upon her arrival in Missoula and confirmed that she had a ruptured aneurysm. Following a period of time necessary to stabilize Rita Mae’s condition, Dr. Dewey performed a craniotomy in order to prevent a second rupture.

Prior to his deposition, Dr. Dewey stated that in his opinion, “the claimant’s work was not in any way causally related to [the ruptured aneurysm].” Dr. Dewey’s opinion was offered in response to a written request by counsel for San Francisco.

At his deposition, however, Dr. Dewey indicated that new information had since come to his attention.

“Q. And do you still hold that opinion today?

“A. Based on the information that I had as of 16 July ‘86 regarding Mrs. Snyder’s work or what my impressions were of her job at that time, my opinion is still valid. It would be unfair for me — or not unfair, but inappropriate, I think to change that opinion. That is what I stated, and that’s what I believed at that time. And based on that same information, I would arrive at the same conclusion.

“Q. When you say ‘information’, is that information — A. Well-

“Q. — about Rita Mae Snyder’s work? A. I have been informed of some circumstances which, in fact, may have some causal relationship subsequent to my dictating that letter.”

In addition, Dr. Dewey indicated that Rita Mae’s stressful work environment could have aggravated the aneurysm.

“Q. Did Mr. Jones mention any unusual changes in the work place or stressors in the work place when he asked for your opinions?

“A. I do not see that [in the letter].

“Q. Did Mr. Jones inquire whether it was medically possible that an increased work load or increased stress in the work place aggravated or accelerated Rita Snyder’s pre-existing condition?

“A. No, he did not.

“Q. Would that information possibly have changed an opinion that you had given to Mr. Jones in response to his letter.

“A. I don’t know. I guess it depends on what information he had given me. That’s a question that’s very difficult to answer even in retrospect. But, in practical terms, I think the more information that a physician has, the more appropriate and informed his answer may be.

“Q. Dr. Dewey, would you agree that the following work situations more likely than not cause workers to experience stress: One, a disorganized procedure for handling customers; two, angry customers; three, poor communications with management; four, increased work load; five, unusual and unpaid for overtime; and six, job duties that cannot be completed correctly?

“A. Well, I don’t think it requires a medical degree to answer those questions. Those all seem like stressful — that all seems like collectively a stressful work environment.

“Q. When a worker experiences a stressful situation in their work place, is it medically possible and probable that that situation could cause them to suffer elevation in blood pressure?

“A. Again, my feeling is that stress of any kind may lead to the transient — at least transient elevation of blood pressure. In our treatment of patients, once they arrive at the hospital, when we are attempting to reduce blood pressure, is to do the opposite. That is, to avoid all stressful circumstances. So, I can’t say that a particular stress raises blood pressure; but it is possible and probable that stressful situations, regardless of their cause, may elevate blood pressure.

“Q. Dr. Dewey, testimony at trial was offered to the following facts: that through the fall months of 1984, Rita Snyder worked progressively more unpaid overtime. That through the fall months of 1984, communication between the management and the employees at her place of work deteriorated. That during the fall months of 1984, the procedure for scheduling customers changed. The business operated in a less organized fashion, and further that one of Rita Snyder’s job duties, that of balancing the till, became progressively more difficult because the manager would remove money from the till and not leave a note telling anyone how much or that he had done so. On December 6th, 1984, the business’s closest competitor was destroyed by fire and within a week Rita Snyder’s job duties were increased both in customers she had to wait on and the bookkeeping that she had to do. About this point in time Rita Snyder made comments about the job being a rat race. That she feared she would lose her job.

“If the Court finds as fact some or all of those incidents, as I have related them, do those sound like incidents that would cause Rita to feel stress in her work place?

“A. Those are, in my opinion and I think in most lay people’s opinion — most lay people would agree are stressful.

“Q. Is it medically possible that that chain of incidents aggravated or accelerated the ultimate result of Rita Snyder’s basilar artery aneurysm?

“A. If those — if that chain of events caused any significant change in blood pressure, then they would have a bearing; and that is an acceleration of the stress of the wall of the aneurysm.

“Q. At the time of trial, testimony was offered concerning the following facts about December 31st, 1984: December 31st, 1984, was an unusually busy day. Rita Snyder’s place of employment was short three or four employees of the normal number of ten. Rita had commented soon after coming to work that an unusually unpleasant customer was scheduled to come in and do business at her place of employment. The other bookkeeper that Rita Snyder shared duties with was busy with another job and couldn’t help Rita with her customers and her work up in the front of her business place. When Rita came to work in the morning, she looked normal and fresh. And after approximately an hour, she looked tired and wrung out. And shortly before Rita’s syncopal episode, Rita asked for help to decipher an invoice that had been incorrectly and incompletely filled out.

“Assuming the Court finds as fact some or all of those incidents, are those incidents occurrences that would cause Rita to suffer stress in her work place.

“A. What you’re describing, again, sounds to me like it is entirely possible that that is a stressful circumstance, stressful situation. That that stressful situation could possibly have elevated blood pressure.

“Q. Could the elevation of the blood pressure aggravate or accelerate the ultimate rupture of her basilar artery aneurysm?

“A. Any elevation of the mean arterial pressure will accelerate the rupture of an aneurysm. Let me rephrase that. Any elevation in mean arterial pressure predispose — predisposes an aneurysm to rupture because it can be directly — it will directly reflect itself in tension of the wall of the aneurysm.”

Dr. Gary Cooney is a neurologist who practices in conjunction with Dr. Dewey. In his practice, Dr. Cooney regularly evaluates patients for stress-related conditions. He opined that he performs that type of evaluation more frequently than a neurosurgeon. Dr. Cooney initially reviewed Rita Mae’s medical records at the request of a psychiatrist involved in Rita Mae’s treatment. He also gathered additional information and continued to take part in Rita Mae’s treatment. In his opinion, the rupture of Rita Mae’s aneurysm was causally related to work stress.

“Q. Dr. Cooney, do you have an opinion to a reasonable degree of medical certainty whether Rita Snyder’s current problems are causally related to the ruptured aneurysm and its treatment? A. I do.

“Q. What is your opinion? A. I believe that the rupture of the patient’s aneurysm was related to the medical problems that she was experiencing at the time of the rupture which were exaggerated and aggravated by work stress which she had been experiencing for some time.

“Q. Dr. Cooney, can you state whether or not the following situations more likely than not would cause a bookkeeper who1 also waits on customers to experience stress: One, a disorganized procedure for handling customers; two, unsatisfied customers; three, poor communication with management; four, an increased work load; five, unusual and unpaid for overtime; and, six, job duties that cannot be completed correctly nor on time.

“A. All of those conditions would probably increase an individual’s level of stress.

“Q. If each situation would increase an individual’s level of stress, would several or all of those situations at the same time add additional stress?

“A. They would.

“Q. At the time of trial, Dr. Cooney, testimony was offered to the following facts concerning December 31, 1984: December 31, 1984, was an unusually busy day at Rita Snyder’s place of employment. Rita Snyder’s place of employment normally operated with ten employees and had six or seven working on December 31. Early in the morning of December 31, Rita commented that an unusually unpleasant customer was scheduled to come in and do business at her place of employment. The other bookkeeper who normally worked with Rita Snyder was busy with other job duties and was unable to help Rita with waiting on customers and some of the other job duties that Rita had to do. That December 31, 1984, was the day the end of the month bookkeeping was to be done on. The end of the month bookkeeping was an extra, additional duty in addition to Rita’s normal job duties. When Rita Snyder came to work on the morning of December 31, she appeared normal. After one hour in the work place, she appeared wrung out. Shortly before Rita’s syncopal episode at work, Rita asked for help from the other bookkeeper because she was unable to decipher some paper work that the manager had incorrectly and incompletely filled out.

“Dr. Cooney, if the Court finds as fact those facts substantially as I have related them to you, is it — are those incidents such as would normally cause a worker to experience unusual stress?

“A. I would think that those events would cause an unusual amount of stress.

“Q. Is it medically possible that these incidents aggravated or accelerated the ultimate result of Rita Snyder’s pre-existing basilar artery aneurysm?

“A. Yes.

“Q. Is it medically probable that Rita Snyder experienced a stress reaction to her work place generally after being exposed to stressful experiences over a period of time?

“A. It’s certainly possible that that occurred.

“Q. Dr. Cooney, do you have an opinion, to a reasonable degree of medical certainty, whether Rita Snyder’s aneurysm would have ruptured when it did if she had not been exposed to unusual work stress?

“A. I do.

“Q. What is your opinion?

“A. I believe that it is more likely that the aneurysm ruptured when it did, presuming that she was exposed to the stresses that we have been discussing, than would have occurred had she not experienced that sort of stressful situation.”

Dr. Albert Joern is a neurosurgeon and former medical school professor. Dr. Joern examined Rita Mae’s records and concluded that it is more likely than not that there is a causal relationship between the unusual stress in her work place and the rupture of Rita Mae’s aneurysm.

The central issues in the case at hand concerns the sufficiency of evidence presented by the claimant. It is well settled that decisions of the Workers’ Compensation Court will be upheld upon a finding of substantial credible evidence. Tocco v. City of Great Falls (Mont. 1986), [220 Mont. 221,] 714 P.2d 160, 163, 43 St.Rep. 310, 314. “However, when the critical evidence, particularly medical evidence, is entered by deposition, we have held that ‘this Court, although sitting in review, is in as good a position as the Workers’ Compensation Court to judge the weight to be given record testimony . . .’” Jones v. St. Regis Paper Co. (1982), 196 Mont. 138, 146, 639 P.2d 1140, 1144, citing Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 584 P.2d 656. We find the medical evidence, together with other evidence is sufficient to establish a compensable injury within the meaning of the Montana Workers’ Compensation Act.

The Workers’ Compensation Court found that Rita Mae was upset on the day in question; that stress causes an increase in blood pressure; and that an increase in blood pressure can cause an aneurysm to rupture. The court concluded, however, that there was insufficient evidence of work-caused stress in the degree needed to elevate blood pressure. Such a conclusion is in stark contrast with the evidence presented at trial.

The medical experts unanimously agreed that the average person would deem Rita Mae’s work place unusually stressful in the months immediately preceding her injury. The experts also agreed that the work environment on the day of the injury was particularly stressful. San Francisco contends such evidence is not significant, however.

San Francisco places great reliance on the fact that human beings react differently to environmental stimuli. It is alleged that this variation and our decision in Campbell v. Young Motor Company (Mont. 1984), [211 Mont. 68,] 684 P.2d 1101, 41 St.Rep. 1218, requires that a psychologist perform a “psychological reconstruction” demonstrating that Rita Mae found her work environment stressful. We disagree.

In Campbell, the issue was whether suicide is per se an independent, intervening cause which precludes the award of death benefits to an injured workers beneficiary. We held that suicide is compensable if the on-the-job injury produces post-injury trauma which causes the suicide. 684 P.2d at 1103, 41 St.Rep. at 1220. We did not set forth an evidentiary rule requiring a “psychological reconstruction” if psychological factors are involved. The “psychological autopsy” performed in Campbell was merely recognized as a method of establishing a nexus between the injury and resulting suicide.

In the instant case, Rita Mae’s family and co-workers testified, inter alia, that Rita Mae was under a great deal of pressure from work; that she had been working progressively more unusual and unpaid overtime; that her job duties had become more difficult; that she had to deal with angry customers and employees; that the work place was disorganized; that there was poor communication with management; and, that she feared she would lose her job. There is no evidence that Rita Mae was an emotional zombie. The record discloses quite the opposite.

The medical experts agreed that Rita Mae’s work environment was very stressful. Rita Mae’s co-workers and family confirmed that Rita Mae was affected by the stress. The testimony showed she appeared nervous all the time; she was thought to be under a great deal of pressure from work; and, she appeared wrung-out soon after arriving at work. We find the evidence is sufficient to demonstrate that Rita Mae found her work environment unusually stressful. As Dr. Dewey indicated, it does not take a medical degree to determine that the work environment was very stressful.

In the alternative, San Francisco contends that Section 39-71-119, MCA (1983), which was controlling at the time of the rupture, precludes a finding of compensable injury absent a showing of physical impact. It provides:

“ ‘Injury’ or ‘injured’ means: (1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom and excluding disease not traceable to injury . . .”

By its terms, the statute does not require that an injury arise from a specific instance of physical impact. “A tangible happening must be a perceptible happening Some action or incident, or chain of actions or incidents, must be shown which may be perceived as a contributing cause of the resulting injury.” Erhart v. Great Western Sugar Co. (1976), 169 Mont. 375, 381, 546 P.2d 1055, 1058. The stress induced increase in blood pressure which gradually expands a blood vessel to the point of rupture is such a chain of incidents. The fact that the injury producing stimulus is in the form of sustained emotional stress or strain does not make the impact on the body any less harmful or real. We hold that the unusual and unexpected mental strain of a stressful work environment which causes a preexisting aneurysm to rupture is a tangible happening of a traumatic nature from an unusual strain. See Rathbrun v. Tabor Tank Lines (1955), 129 Mont. 121, 283 P.2d 966 (unusual stress and strain which causes injury is a compensable occurrence); Hoehne v. Granite Lumber Co. (1980), 189 Mont. 221, 615 P.2d 863 (tangible happening need not be a single, isolated incident); Jones, supra (claimant need not identify specific incident which causes injury); Wise v. Perkins (Mont. 1983), 202 Mont. 157, 656 P.2d 816, 40 St.Rep. 1 (excessive work week which results in phlebitis constitutes a tangible happening of a traumatic nature from an unusual strain); Tocco, supra, (emotional stress contributing cause of injury). By so holding, we join the overwhelming majority of jurisdictions which recognize aggravation of an aneurysm as a compensable injury. We note, however, that this opinion may be unique in light of the Legislature’s subsequent modification of the injury statute. See Section 39-71-119(3)(a).

The second issue before the Court concerns the evidentiary weight to be given the testimony of the treating physician. Rita Mae contends that the Workers’ Compensation Court improperly gave the deposition testimony of Dr. Dewey, the treating physician, greater weight. As a general rule, we agree that the testimony of a treating physician is entitled to greater evidentiary weight. See generally Drescher v. Liberty Mutual Fire Insurance Co., WCC No. 8509-3254, decided February 11, 1986; Goodman v. Liberty Mutual, WCC No. 8502-2897, decided September 3, 1985. Logic indicates that the treating physician will normally have had more contact with, and greater knowledge of, the injured worker. As a result, the treating physician should generally be in the best position to give an informed opinion.

However, the treating physician rule is not cast in stone. In the instant case, Dr. Dewey indicated that his initial opinion was, in effect, based on incomplete knowledge. The court ignored Dr. Dewey’s subsequent acknowledgment that it is possible and probable that the unusually stressful work environment resulted in elevated blood pressure and that elevated blood pressure can cause an aneurysm to rupture.

In addition, Dr. Cooney also took part in the care and treatment of Rita Mae. He concluded that Rita Mae’s unusually stressful work environment was causally connected to the subsequent rupture of the aneurysm. His opinion, which was affirmed by Dr. Joern, was also ignored, however. Under these circumstances, we agree that the court improperly relied upon Dr. Dewey’s initial conclusion.

The final issue before the Court is the propriety of the hypothetical questions posed to the medical experts by Rita Mae’s counsel. Although San Francisco objected to the hypothetical questions, the Workers’ Compensation Court did not rule on the matter in light of its decision on the merits. We address the issue in the interests of judicial economy and final resolution of the controversy.

Although the Workers’ Compensation Court was not generally bound by the rules of evidence at the time in question, the court has often looked to the Montana Rules of Evidence for guidance. San Francisco contends that the hypothetical questions, reproduced infra, were improper because the questions contained improper characterizations of the evidence, the facts relied upon were not proven at trial, and Dr. Joern relied upon information not communicated to the Court. Assuming, arguendo, that the stricter standard of the Montana Rules of Evidence did apply, we find no error.

A review of the record indicates that the alleged mischaracterization of the record did not occur. The facts contained in the hypothetical questions posed by counsel accurately reflect the testimony presented. We will not require counsel to engage in a verbatim regurgitation of prior testimony. See Graham v. Rolandson (1967), 150 Mont. 270, 435 P.2d 263. San Francisco’s contention that the facts relied upon were not proven is similarly without merit.

Finally, we call San Francisco’s attention to Rule 705, M.R.Evid. It provides:

“Disclosure of facts or data underlying expert opinion. The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose of the underlying facts or data on cross-examination.”

As Rule 705 indicates, an expert need not delineate the complete basis for his or her opinion prior to offering that opinion. Counsel for San Francisco thoroughly investigated the matter on cross-examination. We find no error.

The judgment of the Workers’ Compensation Court is reversed with instructions to enter judgment in favor of Rita Mae Snyder.

MR. JUSTICES GULBRANDSON, HARRISON, HUNT and Mc-DONOUGH concur.


text:
    From: The District Court of the Eighth Judicial District, County of Cascade,
    STATE OF MONTANA, Plaintiff vs. ALAN CRAIG CUTNER, Defendant.
    No. CDC-83-092b
    DATED this 8th day of May, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Sexual Assault, 20 years; Count II, Burglary, 10 years to be served concurrently and the Petitioner was designated as non-dangerous for parole eligibility imposed on March 16, 1984, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Paul Ewers of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eleventh Judicial District, County of Flathead,
    STATE OF MONTANA, Plaintiff vs. ROBERT BARRETT COLLINS, Defendant.

      No. DC-86-052b
    DATED this 8th day of May, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 10 years with 2 years suspended plus conditions for Burglary imposed on September 23, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

The Defendant claims he didn’t get what he bargained for, and the record was not clear.

We wish to thank Scott Gratton of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Thirteenth Judicial District, County of Yellowstone,
    STATE OF MONTANA, Plaintiff vs. THOMAS ANTHONY DURBIN, Defendant.
    No. DC-86-082
    DATED this 8th day of May, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 10 years for Theft plus credit for time served; upon release from prison, Defendant is required to enroll and complete a drug treatment program, imposed on July 15, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Pete Carroll of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Fourth Judicial District, County of Missoula,
    STATE OF MONTANA, Plaintiff vs. ROBERT WILLIAM GONYEA, Defendant.
    No. 6868
   DECISION

DATED this 8th day of May, 1987.

The application of the above-named defendant for a review of the sentence for Count I, Burglary, 10 years; Counts II, III, & IV, Burglary, 10 years on each count to be served concurrently; but consecutive with Count I; and 5 years for Persistent Felony Offender to be served consecutive with Count I and Counts II, III, IV for a total of 25 years, imposed on April 5, 1985, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Keith Christie of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


author: HONORABLE THOMAS HONZEL

text:
    From: The District Court of the Sixteenth Judicial District, County of Custer,
    STATE OF MONTANA, Plaintiff vs. JOSEPH JACOB LESER, Defendant.
    No. 3048
    DATED this 8th day of May, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Burglary, 10 years; Count II, Theft, 10 years; both to be served concurrently and concurrent to any other sentence presently being served; credit for 106 days served; plus conditions as stated in the May 7,1985 Decision rendered by Judge Martin; plus DANGEROUS DESIGNATION imposed on May 7, 1985, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

HONORABLE THOMAS HONZEL

DISSENTING: He would remove the Dangerous Designation on the basis of the age of defendant and his history of non-violence, otherwise he would leave the remainder of the sentence the same.

We wish to thank Patti Jensen of the Montana Defender Project for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, dissenting, Douglas Harkin, Judges.


text:
    From: The District Court of the Eleventh Judicial District, County of Flathead,
    STATE OF MONTANA, Plaintiff vs. DOREEN K. HOWARD, Defendant.

      No. DC-86-042b
    DATED this 8th day of May, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 10 years for Obstructing Justice imposed on October 1, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Terry Mailloux of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Fourth Judicial District, County of Missoula,
    STATE OF MONTANA, Plaintiff vs. BEA LEONE LARSON, Defendant.
    No. 7268
    DATED this 8th day of May, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 10 years for Issuing a Bad Check, to run concurrently with Cause No. DC-85-24, out of Lincoln County and that she pay a $20.00 fee to go to the Surcharge Fund imposed on May 2,1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Scott Gratton of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Nineteenth Judicial District, County of Lincoln,
    STATE OF MONTANA, Plaintiff vs. BEA LEONE LARSON, Defendant.
    No. DC-85-24
   DECISION

The application of the above-named defendant for a review of the sentence of 10 years for Issuing a Bad Check; credit for 129 days served; pius the Defendant must enroll in the Life Skills Program or any appropriate training center; and she is not to open or use a checking account when released on parole imposed on December 23, 1985, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall be amended to 10 years for Issuing a Bad Check; credit for 129 days served; plus a recommendation that the Defendant be released to a training Program which would be under the supervision of custodial authorities at the Women’s Correctional Facility; and she is not to open or use a checking account when released on parole.

DATED this 8th day of May, 1987.

The reason for the amendment is that it will give administration more discretion in properly supervising this woman on parole.

We wish to thank Scott Gratton of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Twentieth Judicial District, County of Lake,
    STATE OF MONTANA, Plaintiff vs. WILLIAM ISAAC “BILLY” NESS, Defendant.
    No. DC-85-70
    DATED this 8th day of May, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 5 years with 1 year suspended for Burglary; plus conditions; Swan River Recommended; credit for 87 days served imposed on December 7,1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Les Ocks of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    JULY 1987 CALENDAR
    From: The District Court of the Fourth Judicial District, County of Missoula,
    STATE OF MONTANA, Plaintiff vs. ROBERT EUGENE ORR, Defendant.

      No. 6267
    DATED this 24th day of July, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Sexual Intercourse without Consent; Count III, Theft; to be committed to the custody of the Director of the Dept, of Institutions to be placed at Warm Springs or other appropriate Institution for custody, care and treatment for 20 years, imposed on June 3, 1983, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence is amended in the following manner:

1. On the conviction of Sexual Intercourse Without Consent, as alleged in Count I, the sentence shall be twenty (20) years with five (5) suspended.
2. As to the conviction of Theft, set out in the sentence, shall be ten (10) years.

Both sentences shall be served concurrently.

It is the consensus of the Court, with Judge Harkin dissenting, that the sentence should be amended as indicated for the reasons that:

(1) The 20-years sentence imposed does not indicate what portion thereof was applicable to the sex crime and what portion was applicable to the crime of Theft;
(2) It appears that the Defendant did not understand that he was not entitled to “good time” on a sentence to the hospital at Warm Springs; and
(3) The Court’s majority notes the Defendant’s lack of any prior criminal record, a fact that the sentencing judge may have overlooked. The amended and adjusted sentence in the opinion of the majority seems fair and in a measure corrects an obvious misunderstanding.

HONORABLE DOUGLAS HARKIN

DISSENTING: I would affirm the sentence of the trial court. The applicant receive a sentence consistent with his plea bargain. There is no evidence that the sentencing judge did not consider the absence of prior criminal record.

We wish to thank Jeff Payne of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, dissenting, Judges.


text:
    From: The District Court of the Fourth Judicial District, County of Cascade,
    STATE OF MONTANA, Plaintiff vs. GARY WAYNE CAREY, Defendant.
    No. DC-7704
   DECISION

The application of the above-named defendant for a review of the sentence for 2 Counts of Theft, 10 years on each count to be served concurrently; plus credit for 72 days served at the Missoula County Jail; $20.00 surcharge; Recommend Lighthouse Drug Program imposed on March 25,1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

DATED this 24th day of July, 1987.

We wish to thank Amy Guth of the Montana Defender Project for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eleventh Judicial District, County of Flathead,
    STATE OF MONTANA, Plaintiff vs. EDWARD FREDERICK CONWAY, Defendant.
    No. DC-86-119
    DATED this 24th day of July, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Deliberate Homicide, 100 years + 10 years for use of a weapon, to run consecutively; Count II, Robbery, 40 years plus 10 years for use of a weapon, to run consecutive, but concurrent to the previous 10 years for use of weapon; Counts I & II shall be served consecutively for a total of 150 years; Ineligible for Parole for 100 years, DANGEROUS DESIGNATION, imposed on December 19, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Tom Ash, Deputy County Attorney from Flathead County for appearing before the Sentence Review Board.

We wish to thank Patrick Sherlock, Attorney at Law from Kalispell for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Ninth Judicial District, County of Glacier,
    STATE OF MONTANA, Plaintiff vs. JOE WAYNE BAUGHMAN, Defendant.
    No. DC-86-27
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Aggravated Kidnaping, 100 years; Count II, Sexual Intercourse Without Consent, 20 years; Count III, Felony Assault, 10 years; Count IV, Carrying Concealed Weapons, 5 years; all to be served concurrently; plus 10 years for use of a weapon, to run consecutively; DANGEROUS DESIGNATION, imposed on March 24, 1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

DATED this 24th day of July, 1987.

We wish to thank James C. Nelson, Glacier County Attorney, for appearing before the Sentence Review Board.

We wish to thank Charles Jacobson, Attorney from Conrad, for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Fourth Judicial District, County of Cascade,
    STATE OF MONTANA, Plaintiff vs. JACK JASON COX, Defendant.
    No. 7129
    DATED this 24th day of July, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Burglary, 10 years; Count II, Aggravated Burglary, 30 years with 20 years suspended; Count III, Theft, 10 years; Count V, Misdemeanor Theft, 6 months; Count VI, Misdemeanor Theft, 6 months; all sentences to run concurrently plus credit for 217 days imposed on June 5, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Dale Robbins of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Thirteenth Judicial District, County of Yellowstone,
    STATE OF MONTANA, Plaintiff vs. ARTHUR JAY FARRAR, Defendant.
    No. DC-86-250
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, Negligent Homicide, 10 years with 2 years suspended + conditions; Count II, D.U.I., 60 days in the County Jail to be served concurrent to Count I; credit for time served; Court recommends placement in a pre-release center imposed on January 16, 1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

DATED this 24th day of July, 1987.

We wish to thank Jeff Payne of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eighth Judicial District, County of Cascade,
    STATE OF MONTANA, Plaintiff vs. GEORGE WOODROW BYRD, Defendant.
    No. ADC-86-175b
    DATED this 24th day of July, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count III, Criminal Sale of Dangerous Drugs, 25 years with 15 years suspended; $5,000 to be paid to Cascade County Drug Program; Court recommends the Defendant be sent to Galen to undergo drug treatment imposed on January 27, 1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Stephen Moses, Attorney from Billings, for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas Honzel, Douglas Harkin, Judges.


text:
    NOVEMBER 1987 CALENDAR
    From: The District Court of the Twentieth Judicial District, County of Lake,
    STATE OF MONTANA, Plaintiff vs. GEORGE K. DUCHARME, Defendant.
    No. DC-86-83
   DECISION

The application of the above-named defendant for a review of the sentence of 10 years on each of two count of Incest, to be served consecutively with 10 years suspended plus conditions on Count II imposed on June 3, 1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

DATED this 12th day of November, 1987.

We wish to thank Larry Nistler, Lake County Attorney, for appearing before the Sentence Review Board.

We wish to thank Milton Datsopoulos, Attorney at Law from Missoula for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas C. Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eighth Judicial District, County of Cascade,
    STATE OF MONTANA, Plaintiff vs. JOHN EDWARD KUBIS, Defendant.
    No. CDC-86-289
    DATED this 12th day of November, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 10 years for Issuing a Bad Check plus $1,695.99 in Restitution imposed on July 28, 1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall be amended to 10 years with 2 years suspended. Plus restitution of $1,695.99

The reason for the amendment is that the original sentence imposed is contrary to the Law of the State of Montana because restitution is ordered without any portion of the sentence suspended or deferred. By suspending 2 years of the sentence, this will give the Petitioner an opportunity to make restitution, hence the State will be able to monitor this individual to insure payment of the restitution.

We wish to thank William Joyce of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas C. Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eleventh Judicial District, County of Flathead,
    STATE OF MONTANA, Plaintiff vs. RONALD SYLVESTER TINDAL, Defendant.
    No. DC-84-144
   DECISION

DATED this 12th day of November, 1987.

The application of the above-named defendant for a review of the sentence of 30 years for Mitigated Deliberate Homicide plus 5 years for the use of a weapon; to be served consecutively, DANGEROUS OFFENDER STATUS, imposed on March 12, 1985, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed, however, the DANGEROUS DESIGNATION shall be removed.

This Board finds nothing in the record that would determine this Petitioner a Dangerous Offender.

We wish to thank Amy Guth of the Montana Defender Project for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas C. Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eighth Judicial District, County of Cascade,
    STATE OF MONTANA, Plaintiff vs. STEVEN K. ROSTEN, Defendant.
    No. CDC-86-216
    DATED this 12th day of November, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 20 years with 10 years suspended to be served concurrently to all other sentences imposed 6/26/87, for Forgery. Plus restitution of $3,790.15 within 2 years from date of release; $20.00 surcharge. Plus 5 years for Persistent Felony Offender to be served consecutively, imposed on June 26,1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Brant Light, Deputy County Attorney, from Cascade County for appearing before the Sentence Review Board.

We wish to thank Gregg Smith of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas C. Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Twentieth Judicial District, County of Lake,
    STATE OF MONTANA, Plaintiff vs. JOHN PATRICK WEASELHEAD, Defendant.

      No. DC-86-112
    DATED this 12th day of November, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, 5 years for Burglary; Count III, 6 years with 1 year suspended for Burglary; to be served consecutively; $616.50 in restitution to be paid before the 11th month of defendant’s one year probation. Defendant may released early if restitution is paid in full, imposed on January 14, 1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

This Board deplores the absence of a Presentence Report and recommends that all Sentencing Judges have a PSI prepared.

We wish to thank Bonnie Combes of the Montana Defender Project for her assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas C. Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eighteenth Judicial District, County of Gallatin,
    STATE OF MONTANA, Plaintiff vs. ERNEST “JIGGS” ELLIOTT, Defendant.
    No. DC-87-05
    DATED this 12th day of November, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence for Count I, 25 years for Criminal Sale of Dangerous Drugs; Count II, 25 years for Conspiracy to Sell Drugs; to be served concurrently; and concurrent to any sentence imposed in Cause No. DC-86-16A imposed on March 26, 1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall be amended to 15 years on each count to be served concurrently to each other and concurrent to any sentence imposed in Cause No. DC-86-16A

Reasons for the amendment are:

(1) 25 years is excessive under the circumstances; and
(2) The original sentence was disproportionate to what the other Co-Defendants received.

HONORABLE DOUGLAS HARKIN

DISSENTS; He would have amended the sentence to 20 years.

We wish to thank Marty Lambert, Deputy County Attorney from Gallatin County for appearing before the Sentence Review Board.

We wish to thank Steve Ungar, Attorney at Law from Bozeman, for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas C. Honzel, Douglas Harkin, dissenting.


text:
    From: The District Court of the Sixth Judicial District, County of Park,
    STATE OF MONTANA, Plaintiff vs. JAMES ARTHUR REYNOLDS, Defendant.
    No. 86-40
    DATED this 12th day of November, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 10 years for Theft to be served concurrently with DC-2227; Restitution of $1,900, imposed on June 1, 1987, was fully heard and after a careful consideration of the entire matter it is decided that: during the course of the hearing it was discovered that Judge Davis, Chairman of this Court, had been involved in sentencing the Defendant in a collateral proceeding. Judge Davis thereupon recused himself and with the consent of the Defendant, the hearing proceeded before Judges Honzel and Harkin.

The Defendant’s imposed sentence is amended to ten years with three years suspended; plus restitution in full. The amendment is necessary for the reason that under the terms of the original sentence, restitution although ordered was not possible.

We wish to thank William Hammer of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Thomas C. Honzel, Chairman, Frank M. Davis


text:
    From: The District Court of the Eighth Judicial District, County of Gallatin,
    STATE OF MONTANA, Plaintiff vs. DANNA RAY HENNEN, Defendant.
    No. CDC-86-184
   DECISION

The application of the above-named defendant for a review of the sentence of 25 years with 10 years suspended; Court recommends the Defendant be sent to the Lighthouse Program; and recommends that the defendant be permitted to enter a pre-release center at the appropriate time the Parole Board so deems, imposed on February 10, 1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall remain the same as originally imposed.

We wish to thank Steven Hudspeth, Deputy County Attorney, from Cascade County for appearing before the Sentence Review Board.

DATED this 12th day of November, 1987.

We wish to thank Jeff Payne of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas C. Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Eighth Judicial District, County of Gallatin,
    STATE OF MONTANA, Plaintiff vs. WILLIAM MICHAEL MORAN, Defendant.
    No. BDC-87-092
    DATED this 12th day of November, 1987.
   DECISION

The application of the above-named defendant for a review of the sentence of 10 years for Issuing a Bad Check, consecutive to current sentence Defendant is now serving imposed on July 27, 1987, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall be amended to 10 years for the crime of Issuing a Bad Check. This sentence shall be served consecutively to the sentence that defendant is now serving.

This Board recognizes that the Petitioner should spend prison time for this offense, however, the restitution is also important. Therefore, the Board suspends the 10 year sentence so the individual can start to repay the restitution at a sooner date.

A condition of this sentence is that the Petitioner shall not have a checking account and must pay full restitution.

We wish to thank Mark Smith of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Frank M. Davis, Chairman, Thomas C. Honzel, Douglas Harkin, Judges.


text:
    From: The District Court of the Fourth Judicial District, County of Missoula,
    STATE OF MONTANA, Plaintiff vs. TIMOTHY LEE DAVIS, Defendant.
    No. 6898
   DECISION

The application of the above-named defendant for a review of the sentence of 10 years with 7 years suspended for Issuing a Bad Check; $1,515.46 Restitution; transfer to Swan River within 30 days of his arrival at MSP, imposed on August 1, 1986, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence shall be amended to five years with 2 years suspended. The restitution and conditions of probation remain the same as originally imposed.'

DATED this 12th day of November, 1987.

Reasons for amendment are:

(1) The age of the defendant;

(2) The nature of his crime was that of non-violence; and

(3) The petitioner appears to be a good prospect for rehabilitation.

HONORABLE DOUGLAS HARKIN

DISSENTING: He would continue with the Sentence originally imposed because of the poor performance the Defendant showed while on probation.

We wish to thank William Joyce of the Montana Defender Project for his assistance to the Defendant and to this Court.

SENTENCE REVIEW DIVISION

Prank M. Davis, Chairman, Thomas C. Honzel, Douglas Harkin, dissenting.