text:
    FROM: The District Court of the 21st Judicial District. County of Ravalli.
    STATE OF MONTANA, Plaintiff, vs. Michael Ray Nelson, Defendant.
    NO. CR 94-91 DECISION
    DATED this 19th day of April, 1995.
   On November 9, 1994, the defendant was sentenced to six (6) months in the Ravalli County Jail on each of the two misdemeanor counts; Criminal Mischief, a Misdemeanor and Resisting Arrest, a Misdemeanor; and will be imprisoned in the Montana State Prison for ten (10) years on the felony count, Felony Assault. Said sentences to run concurrently with one another. The defendant will receive credit for 73 days for time served in jail prior to sentencing. The court directs that the defendant not be considered for parole until he has successfully completed the anger management program at the Montana State Prison, the chemical dependency program at Montana State Prison and further, that he not be considered for parole until he has paid the restitution owed to the Ravalli County Sheriffs Office in the sum of $34.00. The defendant is designated a dangerous offender for the purposes of parole consideration.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Connie Camino, legal intern of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Connie Camino, legal intern of the Montana Defender Project for representing Michael Nelson in this matter.


source: Caselaw Access Project

license: Public Domain

text:
    FROM: The District Court of the 16th Judicial District. County of Custer.

      STATE OF MONTANA, Plaintiff, vs. Clifton Eugene Palmer, Defendant.
    NO. 3644 DECISION
    DATED this 19th day of April, 1995.
   On October 3, 1994, the defendant was sentenced to ten (10) years at Montana State Prison on Count I: Sexual Intercourse Without Consent, a Felony and to ten (10) years at Montana State Prison on Count II: Sexual Intercourse Without Consent, a Felony. That the balance of the sentences under Count I and II shall be suspended upon successful completion of Phase I and Phase II of the Sexual Offender Treatment Program at Montana State Prison. That the sentences for Counts I and II shall run concurrently; That the sentences for Counts I and II shall run concurrent with Rosebud County’s sentence. That the defendant shall receive credit for 196 days of presentence incarceration. Pursuant to statute, the defendant shall be tested for sexually transmitted diseases while at Montana State Prison. If positive, test results shall be made available to the victims. That the defendant is subject to conditions during the period of the suspended sentence as stated in the October 3, 1994 Judgment.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct. The defendant received exactly what he agreed to in the plea bargain.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Clifton Palmer for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Randy Lee Plumley, Defendant.
    NO. 10940 DECISION
   On August 31,1994, the defendant was sentenced to a term of twenty (20) years in the Montana State Prison for the offense of Aggravated Kidnapping, a Felony. That, however, ten (10) years of defendant’s sentence is hereby suspended on terms and conditions as listed in the August 31,1994 Judgment. It is the recommendation of the court that prior to becoming eligible for parole that the defendant shall enter and successfully complete the sex offender program and the alcohol treatment program at the Montana State Prison. It is further ordered that the defendant shall register as a sexual offender, pursuant to Section 46-23-504 and 46-23-505, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for a period of ten (10) years following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this ten (10) year period. Defendant shall be designated a dangerous offender for the purposes of parole. Defendant shall receive credit for time served at Missoula County Jail from December 31,1993, through date of sentencing, August 31,1994, in the amount of two hundred seventy-four (274) days.

DATED this 19th day of April, 1995.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed but the requirement that the defendant register as a sex offender following his release from custody be deleted.

The reason for the amendment is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Randy Lee Plumley for representing himself in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Bobby Joe Price, Defendant.
    NO. DC 94-358 DECISION
   On November 29, 1994, the defendant was sentenced to the Montana State Prison for the term of one hundred (100) years for the crime of Attempt, Deliberate Homicide, a felony. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, from July 9, 1994 through November 29, 1994, for 138 days. It is further ordered that because the defendant, while engaged in the commission of the offense of Attempt, Deliberate Homicide, a Felony, knowingly used a dangerous weapon, to wit: dousing the victim with gasoline and setting her on fire by use of a cigarette lighter; he is hereby sentenced to the term often (10) years in the Montana State Prison. This term of imprisonment shall be served consecutively with the term imposed for the commission of the crime of Attempt, Deliberate Homicide, a Felony as charged in the amended information. It is further ordered that defendant shall not be eligible for parole placement in any supervised release program or for placement in any program or facility besides Montana State Prison for the first twenty-five (25) years of the sentence imposed in this case. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction. The Clerk of District Court is hereby ordered to deliver the said sum of twenty dollars ($20.00) to the treasurer of this county. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of one hundred twenty dollars ($120.00) a year prorated at ten dollars ($10.00) a month for the number of months that he is hereunder supervision. The fee is payable to the Clerk of Court.

DATED this 19th day of April, 1995.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition is dismissed pending appeal. The defendant will be allowed to refile his application at a later time.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.


text:
    FROM: The District Court of the 21st Judicial District. County of Ravalli.
    STATE OF MONTANA, Plaintiff, vs. Kevin Wayne Richardson, Defendant.
    NO. CR 94-37 DECISION
   On November 30, 1994, the defendant was sentenced to ten (10) years in Montana State Prison for the offense of Theft, a Felony, with no time suspended. The defendant will receive credit of 106 days for time served in jail prior to sentencing; The defendant is designated a non-dangerous offender for purposes of parole. The court directs that the defendant serve three (3) years without possibility of parole, and that he not be considered for parole until he has successfully completed all phases of any and all chemical dependency programs of the State of Montana that are found to be appropriate by the Department of Corrections. The court further directs that the defendant not be considered for parole until he enters into a plan for payment of restitution to the victim in the sum of $500.00.

DATED this 19th day of April, 1995.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Kevin Richardson for representing himself in this matter.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Raymond Joseph Schneider, Defendant.
    NO. DC 94-047(B) DECISION
   On September 16, 1994, the defendant was sentenced to serve a term of ten (10) years at the Montana State Prison for the offense of Criminal Endangerment, a Felony; Twenty (20) years at the Montana State Prison for the offense of Burglary, a Felony and five (5) years at the Montana State Prison for the offense of Criminal Possession of Dangerous Drugs, a Felony. These sentences are to be served concurrently for a total period of incarceration at the Montana State Prison of twenty (20) years. The judgment imposed in this matter is to be served consecutively to that imposed in Cause Nos. DC 86-016(B) and DC 86-017(B). The defendant shall be given credit for nine (9) days for time served in pre-sentence incarceration. Should the defendant be allowed parole, it is also this Court’s recommendations, without objection by the defendant, through his attorney, Stephen J. Nardi, that he be required to pay restitution to his victims in this matter as a condition of his supervised release from Prison: Bernie Dupuis, $250.00 Canadian Funds: The Wellington Insurance Company, #PA2658931, Dupuis, $3,109.24 Canadian Funds: George Risi, $1,000.00; and the USAA Insurance Company, Colorado Springs, $2,500.00. Payments are to be made through the Flathead County Attorney’s Office, P.O. Box 1516, Kalispell, MT 59903, according to a schedule developed by his parole officer.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Judge Lympus recused himself from any participation in the case. Before becoming a judge, he appeared as County Attorney at a prior sentence review hearing on another case.

DATED this 19th day of April, 1995.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and requested that his case be continued.

After careful consideration, the motion for a continuance was granted. The case shall be heard May 12, 1995.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Frank Davis, Member.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. James Eric Scotson, Defendant.
    NO. DC 94-38 DECISION
   On September 22, 1994, the defendant was sentenced to the term of one hundred (100) years in the Montana State Prison for the offense of Deliberate Homicide, a Felony. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings from January 23, 1994 through September 22, 1994 for 243 days. It is further ordered that because the defendant, while engaged in the commission of the offense of Deliberate Homicide, a Felony, knowingly used a firearm, he is hereby sentenced to the term of ten (10) years in the Montana State Prison. This term of imprisonment shall be served consecutively with the term imposed for the commission of the crime of Deliberate Homicide, a Felony. It is further ordered that defendant shall not be eligible for parole placement in any supervised release program or for placement in any program or facility besides Montana State Prison for the first seventeen and one-half (17 1/2) years of the sentence imposed in this case. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of twenty dollars ($20.00) for this conviction. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this county. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of one hundred twenty dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder supervision. This fee is payable to the Clerk of Court.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by John Kennedy, County Attorney from Billings.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will be amended to require that the defendant not be eligible for parole or participation in a pre-release program until he serves forty (40) years of his sentence.

DATED this 19th day of April, 1995.

The reason for the decision is the Sentence Review Board believes that the nature of the crime requires a lengthy period of incarceration. The Defendant constitutes a serious danger to society. The record indicated he must remain incarcerated for the protection of the public. Defendant is, literally, a cold blooded killer. There is little, if any, likelihood that he will be rehabilitated in prison. The increase in the time required to be served makes this defendant’s sentence more uniform with other sentences for such crimes.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank James Scotson for representing himself in this matter and also John Kennedy, County Attorney from Billings for representing the State.


text:
    FROM: The District Court of the 13th Judicial District. County of Stillwater.
    STATE OF MONTANA, Plaintiff, vs. Thomas Kent Sheets, Defendant.
    NO. DC 94-03 DECISION
   On October 3, 1994, the defendant was sentenced to the Montana State Prison for the term of twenty (20) years for the offense of Sexual Intercourse Without Consent, a Felony. Ten (10) years of said term shall be suspended upon the following special conditions: 1. Prior to the defendant’s release from prison, the defendant must complete at least one phase of the sexual offender program while at the Montana State Prison, and if released on parole or probation, he must enter and complete an outpatient sex offender treatment program. 2. The defendant shall participate in drug and alcohol treatment programs offered at the Montana State Prison. This court recommends against parole or probation unless or until the defendant avails himself of such programs. At such time as it may be determined appropriate for the defendant to be admitted to probation, said probation shall be subject to restrictions and conditions as listed in the October 3, 1994 Judgment. It is further ordered, adjudged and decreed that if the defendant fails to comply with any of the above conditions during any term of probation, a bench warrant of arrest will be issued, the defendant apprehended, and the said defendant will be required to appear before this Court for further proceedings. The defendant is hereby notified that, at such time as he may be admitted to probation, he will be required to pay a monthly supervision fee in the amount of $10.00 to the Clerk of District Court, Stillwater County, Montana, pursuant to Section 46-23-1031, MCA.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 19th day of April, 1995.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Thomas Sheets for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Daryl Ray Shortman, Defendant.
    NO. 10013 DECISION
    DATED this 19th day of April, 1995.
   On September 7, 1994, the court found the defendant in violation of the conditions of his suspended sentence and the court now having been fully advised as to the facts of the case, it is the judgment of the court that the defendant’s prior suspended sentence for the offense of Domestic Abuse, a Felony, is hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term of five (5) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. The defendant shall receive credit for forty (40) days jail time which he has previously served.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Daryl Shortman for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. David Michael Smith, Defendant.
    NO. 11034 DECISION
    DATED this 19th day of April, 1995.
   On September 23, 1994, the defendant was committed to the Department of Corrections for a term of ten (10) years for the offense of Count I: Theft, a Felony and Count II: Bail Jumping, a Felony, for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. Said sentence shall run concurrently with the sentence imposed in Cause No. 9779. It is the recommendation of the court that the defendant participate in the MRT program. Defendant shall receive credit for time served at Missoula County Jail from March 1, 1994, through April 1, 1994, and from June 11, 1994, through date of sentencing, September 23, 1994, in the amount of one hundred thirty-seven (137) days.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank David Smith for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.

      STATE OF MONTANA, Plaintiff, vs. David Michael Smith, Defendant.
    NO. 9779 DECISION
    DATED this 19th day of April, 1995.
   On June 27, 1994, the court found that the defendant was in violation of the conditions of his suspended sentence and the court now having been fully advised as to the facts of the case, it is the judgment of the court that defendant’s prior suspended sentence for the offense of Forgery, a Felony was hereby revoked and that the defendant be and he is hereby committed to the department of Corrections for a term of ten (10) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. Defendant shall receive credit for one hundred eighty-nine (189) days jail time which he has previously served.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank David Smith for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial County of Missoula. District.
    STATE OF MONTANA, Plaintiff, vs. Raymond Paul Smith, Defendant.
    NO. 10423 DECISION
   On June 13, 1994, the defendant was sentenced to a term of ten (10) years on each count for Count I: Attempted Burglary, a Felony and Count II: Bail Jumping, a Felony, to be served in the Montana State Prison. Said sentences shall run concurrently with each other but consecutively to the sentences imposed in Lake County Cause No. DC 89-13 and DC 89-55 and consecutively to the Oregon sentence. Defendant shall receive credit for time served at Missoula County Jail in the amount of ninety-six (96) days.

DATED this 19th day of April, 1995.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The Sentence Review Board believes that the presumption that the sentence was not correct was not overcome. It appears that there is no reason to alter the sentence. Should the defendant feel that the sentence was not handed down in conformity with his plea bargain agreement, he should consider other possible remedies.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Raymond Smith for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Michael Scott Stilson, Defendant.
    NO. 9552 DECISION
   On July 11, 1994, the court found the defendant in violation of the conditions of his suspended sentences and so it is the judgment of the court that defendant’s prior suspended sentences are hereby revoked and the defendant is sentenced to a term of six (6) years on Count I: Issuing a Bad Check, a Felony, and to a term of three (3) years on Count II: Bail Jumping, a Felony, to be served in the Montana State Prison. Said sentences shall run consecutively with each other and consecutively to the sentence imposed in Lewis and Clark County. Defendant shall receive credit for eighty-eight (88) days jail time which he has previously served.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

DATED this 19th day of April, 1995.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Michael Stilson for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Kevin Sullivant, Defendant.
    NO. 9515 DECISION
   On June 22, 1994, the court found that the defendant was in violation of the conditions of his suspended sentence and so it is the judgment of the court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term of ten (10) years for the offense of Count I: Felony Assault, for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. Pursuant to 46-18-202(e), M.C.A., the Court imposes as a condition of any parole or early release that the defendant shall be required to pay the cost of prosecution in the amount of One Hundred Dollars ($100.00); the defendant shall reimburse Missoula County for the cost of the defendant’s court appointed attorney in the amount of Fifty Dollars ($50.00). These costs shall be paid through the office of the Clerk of the District Court and according to a schedule set forth by his Parole Officer. The defendant shall receive credit in the amount of 113 days which he has previously served.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

The Fourth Judicial District Judgment entered June 23, 1994, gives the Defendant credit for 113 days served.

A careful review of the records of the Ravalli County, Montana, Sheriff’s Office show Defendant was incarcerated on the present charges for 66 days more than he was given credit for.

DATED this 19th day of April, 1995.

The Ravalli County Sheriff’s Office also confirms that Defendant served an additional 90 days of home arrest on the present charges, for which he was not given credit.

NOW, THEREFORE, IT IS ORDERED that Defendant receive credit for 156 days in addition to the 113 days as time served on the sentence handed down June 23,1994, for a total of 269 days.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Kevin Sullivant for representing himself in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Daniel George Swan, Defendant.
    NO. CDC-93-259b DECISION
    DATED this 19th day of April, 1995.
   On October 31, 1994, the defendant was sentenced to the Montana State Prison for a period of twenty (20) years for the crime of Aggravated Assault, a Felony. For the purposes of eligibility for parole the defendant is designated a "persistent felony offender" and a "dangerous offender". The defendant is subject to the following terms and conditions: 1. That the defendant is required to make restitution for whatever medical expenses incurred as a result of this offense. 2. That the defendant is to receive treatment for excessive chemical dependency, alcoholism and anger control while incarcerated. 3. That the defendant is to pay the mandatory $20.00 surcharge through the Clerk of Court’s Office, Cascade County, Montana. The defendant is given credit for 417 days already served at the Cascade County Detention Center.

On March 17, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 17th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Daniel Swan for representing himself in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Celeste Anne Watson, Defendant.
    NO. DC 93-228 DECISION
   On March 3, 1994, the defendant was committed to the Montana Department of Institutions, to be placed in a correctional facility for women, to be designated by the Department, for the term of twenty (20) years for the offense of Mitigated Deliberate Homicide, a Felony. It is further ordered that because the defendant, while engaged in the commission of the offense of Mitigated Deliberate Homicide, a Felony, knowingly used a weapon, to wit: a knife; she is hereby sentenced to the term of five (5) years in a correctional facility for women, to be designated by the Department. This term of imprisonment shall be served consecutively with the term imposed for the commission of the crime of Mitigated Deliberate Homicide, a Felony. Now, therefore, it is ordered that the execution of the last eight (8) years of said prison sentence this day imposed on said defendant, as hereinabove set forth, be, and the same hereby is suspended, and said defendant is hereby placed on probation for the last eight (8) years of said period of twenty (20) years, and the court retains jurisdiction of said defendant in the above entitled cause during the last eight (8) years of said prison sentence is suspended upon conditions as stated in the March 3,1994 Order Suspending Sentence. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, MT, from May 15,1993 through March 3,1994 for 292 days. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County. The defendant is further notified that the law imposes upon her the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that she is hereunder Supervision. This fee is payable to the Clerk of Court.

On March 16, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

The charge was reduced from Deliberate Homicide to Mitigated Deliberate and the sentencing judge did not abuse his discretion in the sentence imposed. The Sentence Review Division believes the defendant was treated fairly and perhaps even leniently by the Sentencing Judge.

DATED this 19th day of April, 1995.

Done in open Court this 16th day of March, 1995.

Hon. John Warner, Chairman, Hon. Ted Lympus, Member, Hon. Frank Davis, Member.

The Sentence Review Board wishes to thank Celeste Anne Watson for representing herself in this matter.


author: JUSTICE HUNT JUSTICE NELSON

text:
    CANDY SADDLER CARTER, Appellant & Plaintiff, v. MONTANA DEPARTMENT OF TRANSPORTATION, and STATE OF MONTANA, Respondent & Defendant.
    No. 95-172.
    Submitted on Briefs July 28, 1995
    Decided November 13, 1995.
    52 St.Rep. 1111.
    905 P.2d 1102.
    274 Mont. 39.

      For Appellant: Michael B. Austin, Hardin.
    For Respondent: Joseph P. Mazurek, Attorney General, Sarah Bond, Assistant Attorney General, Helena; Nick A. Rotering, Montana Department of Transportation, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff and appellant, Candy Carter appeals a decision and order from the First Judicial District Court, Lewis and Clark County, granting the defendant, the Montana Department of Transportation, summary judgment based on the appellant’s lack of standing.

We affirm.

The sole issue on appeal is whether the District Court properly granted the Montana Department of Transportation summary judgment.

FACTS

The appellant, Ms. Carter, is an enrolled member of the Chippewa-Cree Tribe of the Rocky Boy reservation. She and her partner own and operate the “Pastime,” a retail gas and convenience store located outside of Box Elder. Carter possesses a business license issued by the Chippewa-Cree. She is not licensed by the State of Montana as a gasoline distributor, nor is she an Indian Trader licensed by the Bureau of Indian Affairs. Carter receives her gas from the Montana Refining Company (MRC). MRC is a resident motor fuel distributor out of Great Falls.

The record is unclear as to when Ms. Carter first contested the motor fuel tax, but the State does have a letter of protest from July 1991. At that time, Carter applied for a tax refund for all gasoline sold at her gas station in the years 1988 through 1990. The request was denied by the Montana Department of Transportation (MDT), so Carter then filed an appeal with the State Tax Appeal Board. She did not complete this appeal procedure.

On October 6, 1992, appellant filed an action against the MDT seeking declaratory and injunctive relief to have the court declare the State was without jurisdiction to require either the distributor or her to pay the motor fuel tax. Appellant also requested a refund of the taxes paid between 1988 and 1992.

In her complaint, Carter alleged the State’s motor fuel tax was unconstitutional as applied to sales to Indian retailers (Tribal members) inside the boundaries of the Rocky Boy reservation because such sales are preempted by federal law. The District Court granted defendant’s motion for summary judgment.

DISCUSSION

Our standard of review on a grant of summary judgment is identical to that of a trial court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R Courts use summary judgment to encourage judicial economy through the elimination of unnecessary trial, delay and expense. Engebretson v. Putnam (1977), 174 Mont. 409, 571 P.2d 368.

The District Court granted summary judgment in favor of the defendant for lack of the requisite standing to bring such a challenge. Initially, we acknowledge that a taxpayer who is directly and adversely affected by an assessment or levy of taxes has the necessary standing to challenge such a tax. State ex rel. Conrad v. Managhan (1971), 157 Mont. 335, 338, 485 P.2d 948, 950.

Outside these special circumstances, the standing requirement for a party challenging the validity of statutes is firmly established. We have held that standing is the “threshold of every case, especially those where a statutory or constitutional violation is claimed to have occurred. ...” Olson v. Department of Revenue, 223 Mont. 464, 469, 726 P.2d 1162, 1166. The injury alleged must be personal to the plaintiff, as distinguished from an injury suffered by the community in general. Warth v. Seldin (1975), 422 U.S. 490, 502, 95 S.Ct.2197, 45 L.Ed.2d 343.

In this case, Carter contends she was personally affected by the tax because the tax affects her distributor, who then imposes the tax on her, which she in turn imposes on her customers. The District Court concluded Carter was not personally aggrieved by the gasoline tax. The court found whether Carter was personally harmed by the gasoline tax statutes depended on where the “legal incidence” of the tax fell. The concept of legal incidence differs from the question of where the economic burden falls. United States v. Delaware (3rd Cir. 1992), 958 F.2d 555, 561.

Shortly before this case was submitted on briefs, the United States Supreme Court decided a case discussing ‘legal incidence.” The Court considered the taxing authority of the State of Oklahoma over the Chickasaw Nation, specifically whether the state could impose a motor fuel excise tax upon fuel sold by Chickasaw Nation retail stores on Tribal trust land. Oklahoma Tax Commission v. Chickasaw Nation (1995),_U.S._, 115 S.Ct. 2214, 132 L.Ed.2d 400. In that case the Court held, “[t]he initial and frequently dispositive question in Indian tax cases ... is who bears the legal incidence of a tax.” Chickasaw, _U.S. at_, 115 S.Ct at 2220.

As part of its analysis the Court looked at the language of the Oklahoma statute. The relevant statute in that case did not expressly identify who was to bear the legal incidence of the tax, whether it was the distributor, the retailer, or consumers; nor did the statute contain a “pass through” provision. A “pass through” provision would require distributors and retailers to pass on the cost of the tax to the consumer. Chickasaw, at _, 115 S.Ct at 2221. The Oklahoma statutes were found to have ensured that the distributer was not burdened with the tax; distributors acted merely as “transmittal agents” for taxes imposed on the retailer. Chickasaw, at_, 115 S.Ct. at 2222. The incidence of the tax rested with the retailer. Accordingly, since the retailer was Tribal, the tax infringed upon the right of Tribal self government. See, e.g. Bryan v. Itasca County (1976), 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710.

Montana differs from Oklahoma in this respect. In Montana the relevant statute concerning the gasoline tax reads as follows:

15-70-204. (Temporary) Gasoline license tax — rate. (1) Every distributor shall pay to the department of transportation a license tax for the privilege of engaging in and carrying on business in this state in an amount equal to:

(b)for each gallon of all other gasoline distributed by the distributor within the state ...

(i) 24 cents per gallon beginning July 1, 1993; and

(ii) 27 cents per gallon beginning July 1, 1994.

The statute clearly states the tax is to be paid by the distributor. The distributor is defined in the statutes as:

15-70-201. (6) “Distributor” means:

(a) any person who engages in the business in this state of producing, refining, manufacturing, or compounding gasoline for sale, use, or distribution;

(b) any person who imports gasoline for sale, use, or distribution;

(c) any person who engages in the wholesale distribution of gasoline in this state and chooses to become licensed to assume the Montana state gasoline tax liability;

(d) any exporter as defined in subsection (8);

(e) any dealer licensed as of January 1, 1969, except a dealer at an established airport;

(f) any person in Montana who blends alcohol with gasoline. Therefore, anyone who distributes gas and licenses themselves as a distributor is subject to the tax. In this case the retailer is not burdened with the tax, Carter is not a distributor. Since the dispositive language in Montana’s statute clearly places the burden on the distributor, the legal incidence of the tax does not fall on Carter. Since Carter is unable to show she has been personally affected by this tax, she lacks the necessary standing to pursue this claim. Therefore summary judgment was appropriate.

We affirm the District Court’s granting of summary judgment based on the appellant’s lack of standing.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICE LEAPHART concur.

JUSTICE NELSON

specially concurs.

I concur with the result of our decision but not in our analysis. In determining whether Carter was personally injured by the gasoline tax, we analyze where the legal incidence of the tax falls. Although the United States Supreme Court noted in Chickasaw that often the dispositive question in Indian tax cases is who bears the legal incidence of the tax, the legal incidence analysis goes to the merits of the taxation issue. Chickasaw did not involve a standing issue, and thus, properly resolved the taxation issue presented there on the basis of a legal incidence analysis. In the instant case, we need not and should not reach the merits, but need only affirm the District Court’s grant of summary judgment based on Carter’s lack of standing. Therefore, we should limit our analysis to standing and should not implicitly reach the merits of Carter’s claims by addressing the legal incidence of the tax.

The sole issue on review is whether the District Court properly granted summary judgment to the Montana Department of Transportation. The District Court granted summary judgment because it found that Carter did not have standing to challenge the validity of Montana’s gasoline license tax as applied to Indian retailers inside the boundaries of the Rocky Boy Reservation.

Standing is a justiciability doctrine designed to control access to the judicial system by determining who is entitled to have a case adjudicated. See Olson v. Department of Revenue (1986), 223 Mont. 464, 469-70, 726 P.2d 1162, 1166. Originating in Article VII, section 4 of the Montana Constitution, the standing doctrine limits judicial power to “cases at law and equity.” This Court has interpreted “cases at law and equity” to embody the same limitations as the Article III “case or controversy” provision in the United States Constitution. Olson, 726 P.2d at 1166; Stewart v. Bd. of Cty. Comm’rs of Big Horn Cty. (1977), 175 Mont. 197, 201, 573 P.2d 184, 186.

The fundamental aspect of standing is that it focuses on the party seeking to get a complaint before a court and not on the issues the party wishes to have adjudicated. Flast v. Cohen (1968), 392 U.S. 83, 99, 88 S.Ct. 1942, 1952 , 20 L.Ed.2d 947, 961. Courts approach standing in two ways. The first approach focuses on the constitutional provisions of standing and the second approach focuses on the prudential restrictions that courts use to preserve judicial credibility and to deny standing. Olson, 726 P.2d at 1166; Valley Forge Christian College v. Americans United for Separation of Church and State (1982), 454 U.S. 464, 475, 102 S.Ct. 752, 760, 70 L.Ed.2d 700, 711.

At a minimum, the constitutional provisions require that a plaintiff be personally injured or be threatened with immediate injury by the alleged constitutional or statutory violation. Olson, 726 P.2d at 1166-67; Chovanak v. Matthews (1948), 120 Mont. 520, 526-27, 188 P.2d 582, 585. Thus, at the threshold of every case, especially those where a statutory or constitutional violation is alleged to have occurred, is the requirement that the plaintiff allege “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues.” Northern Border Pipeline Co. v. State (1989), 237 Mont. 117, 129, 772 P.2d 829, 836; Olson, 726 P.2d at 1166 (quoting Baker v. Carr (1962), 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678). This personal stake requirement is dispositive. If a party seeking review is not among the injured, that party is not entitled to judicial review. Olson, 726 P.2d at 1166-67 (citing Sierra Club v. Morton (1972), 405 U.S. 727, 734-35, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636, 643); but see Grossman v. State, Dept. of Natural Resources (1984), 209 Mont. 427, 438-39, 682 P.2d 1319, 1325 (holding that in special circumstances, presenting issues of an urgent nature, this Court will accept original jurisdiction and drape the taxpayer with standing).

For example, in Olson, the appellants challenged the constitutional validity of certain statutes that require county residence to obtain benefits such as obtaining a fishing or hunting license or running for county office. The appellants were citizens of Montana but did not live within any county boundaries. Olson, 726 P.2d at 1166. We held that the appellants did not allege that the statutes injured them personally or threatened them with immediate injury. Therefore, they did not meet the threshold requirement of a personal stake in the outcome of the controversy.

Similarly, Carter challenges the constitutional validity of a statute imposing a gasoline license tax. See § 15-70-204, MCA. That statute requires every distributor to pay a license tax for the privilege of engaging in and carrying on business within Montana. Importantly, the tax does not apply to a retailer. As a retailer, Carter was not among the injured and thus cannot allege a personal injury. Because she has not alleged the requisite personal stake in the outcome of the controversy, she is not a proper party before the court.

Where the legal incidence of the tax falls is immaterial for purposes of resolving the standing issue in this case, and our decision to affirm should not be grounded in analysis that is more appropriately directed to the merits of the taxation issues raised by Carter’s complaint. Accordingly, I specially concur only in the result of our opinion.

JUSTICE TRIEWEILER concurs in the foregoing special concurrence.


text:
    MAY 1995 CALENDAR
    FROM: The District Court of the 19th Judicial District. County of Lincoln.
    STATE OF MONTANA, Plaintiff, vs. Paul Richard Allen, Defendant.
    NO. DC 94-77 DECISION
    DATED this 23rd day of May, 1995.
   On March 16, 1995, the Court orders, adjudges and decrees that as to charge of Bail Jumping, a felony, the defendant shall be imprisoned in the Montana State Prison for a period of ten (10) years; but that three (3) years shall be suspended. During this period of time the sentence is suspended the defendant shall comply with the terms and conditions of probation further set forth in the March 16, 1995 judgment. The defendant shall receive credit for two hundred sixty-one (261) days time served by reason of prior incarceration. The defendant is designated non-dangerous for purposes of parole eligibility.

On May 12, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Paul Allen for representing himself in this matter.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.

      STATE OF MONTANA, Plaintiff, vs. Brandon Bagnell-Biegler, Defendant.
    NO. DC 90-223(B) DECISION
    DATED this 23rd day of May, 1995.
   On March 8, 1991, the defendant plead guilty to, and was convicted of the offense of Criminal Mischief, a Felony. At the conclusion of a hearing in aggravation and mitigation of sentence held on April 8,1991, the defendant was sentenced to a term of ten (10) years at the Montana State Prison. That period of incarceration was then suspended, subject, in part, to requirements as stated in the September 2, 1994 judgment. On November 19, 1993, the State filed a Petition for the revocation of the defendant’s suspended sentence alleging that he had violated the conditions of his probation. On September 2,1994, it was the judgment of the Court that the defendant serve a term of ten (10) years at the Montana State Prison for the offense of Criminal Mischief, a Felony. The defendant is to be given credit for 191 days served in the Flathead County Detention Center pending final disposition in this matter. In light of his numerous violations, the defendant is not to be given credit for time otherwise served on probation.

On May 12, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Russell Jones, attorney from Spokane, WA. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

According to Rule 18 of the Rules of the Sentence Review Division of the Supreme Court of Montana, the Sentence Review Division will not consider any matter or development subsequent to the imposition of the sentence in the District Court.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Russell Jones, attorney from Spokane, WA. for his assistance to the defendant and to this Court.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.

      STATE OF MONTANA, Plaintiff, vs. James Edward Ball, Defendant.
    NO. DC 94-154A DECISION
    DATED this 23rd day of May, 1995.
   On February 24, 1995, the defendant was found guilty of the offenses of Sexual Intercourse Without Consent, Two Counts, both felonies, and therefore, It is the sentence of this Court that with regard to Count I: Sexual Intercourse Without Consent, a felony, the defendant is sentenced to forty (40) years at the Montana State Prison and with regard to Count III: Sexual Intercourse Without Consent, a felony, the defendant is sentenced to forty (40) years at the Montana State Prison, said sentences to run consecutively for a full term of eighty (80) years. The court finds that the defendant is a substantial danger to others and this court declares the defendant to be a dangerous offender for the purposes of parole eligibility. The defendant shall be restricted from parole eligibility until he has served forty (40) years in the Montana State Prison. The defendant shall be given credit for 240 days served in pre-sentence incarceration as of February 24, 1995. Although the State and defendant have recommended that the court sentence the defendant to Warm Springs State Hospital, the evaluation ordered August 17, 1994 upon the defendant’s motion, fails to provide a basis for the court to follow this recommendation. The court does not recommend that the defendant be sentenced to the Montana State Hospital, but recommends he complete the sexual offender treatment program available at Montana State Prison. As required to Section 46-18-254, M.C.A., the Defendant is hereby advised of his obligation to register as a sexual offender upon his release from custody. The defendant is further advised that his obligation to register continues for a period often (10) years following his release from prison. Failure to comply with this requirement is punishable by a maximum fine of $250.00 and by a maximum term of imprisonment of ninety (90) days.

On May 12, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank James Ball for representing himself in this matter.


author: THE HONORABLE JEFFREY SHERLOCK

text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Shawna Kaye Carter, Defendant.
    NO. DC 94-167 DECISION
    DATED this 23rd day of May, 1995.
   On February 14, 1995, the Court found the defendant guilty of Count I: Forgery, a Felony. For the offense of Forgery, a Felony, the defendant shall be committed to the Department of Corrections for a period of ten (10) years. The defendant shall be required to complete the following while under the Department’s supervision: a) The defendant shall pay restitution, through the Clerk of the District Court of the Eighteenth Judicial District, Law and Justice Center, 615 South 16th Avenue, Bozeman, Montana 59715, as follows: 1: $5,169.00 to James Serenar. 2: $1,500.00 to James Serenar. 3: $1,225.00 to Green Tree Apartments, b) The defendant shall pay a restitution fee in the amount of $250.00. c) The defendant shall pay Em administrative charge in the amount of $20.00. d) The defendant shall under go a chemical dependency evaluation and follow all recommendations, e) The defendant shall undergo a mental health evaluation and follow all recommendations. 4. The court finds the defendant guilty of Count II: Forgery, a Felony. 5. For the offense of Forgery, a Felony, the defendant shall be committed to the Department of Corrections for a period of ten (10) years to run concurrently with Count I. 6. The defendant shall be required to complete the following while under the Department’s supervision, a) The defendant shall pay restitution, through the Clerk of the District Court of the Eighteenth Judical District, Law and Justice Center, 615 South 16th Avenue, Bozeman, Montana 59715, as follows: 1: $2,008.00 jointly to Angel, Serenar, Coil, Bartlett and Fay, and Montana Bank, b) The defendant shall pay a restitution fee in the amount of $200.00. c) The defendant shall pay an administrative charge in the amount of $20.00. d) The defendant shall under go a chemical dependency evaluation and follow all recommendations, e) The defendant shall under go a mental heath evaluation and follow all recommendations. 6. Bond, if any, posted by or on behalf of the defendant, is exonerated and shall be released.

On May 12, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by Gary Balaz, Deputy County Attorney from Bozeman.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, there is a split decision of the Sentence Review Division. The Honorable John Warner and Hon. Robert Boyd vote that the sentence remain the same as originally imposed.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman and Hon. Robert Boyd, Alternate Member.

DISSENT:

THE HONORABLE JEFFREY SHERLOCK

DISSENTS. He would have reduced the sentence.

The Sentence Review Board wishes to thank Shawna Carter for representing herself in this matter and to Gary Balaz, Deputy County Attorney from Bozeman for representing the State.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA, Plaintiff, vs. Richard Alan Champion, Defendant.
    NO. DC 94-81 DECISION
    DATED this 23rd day of May, 1995.
   On November 23, 1994, the Court ordered that the defendant shall be punished by confinement in the Montana State Prison for a term of thirty (30) years, with twenty (20) years suspended, on Count II: Criminal Sale of Dangerous Drugs, a Felony, and for a term of ten (10) years, with none suspended, on Count IV: Criminal Possession With Intent To Sell, a Felony. The sentence imposed on Count IV shall run concurrently with the sentence imposed on Count II. The defendant shall receive credit for time served in the Lake County Jail, which as of the date of this judgment totals one (1) day. The Court at this time does not make a designation of the defendant as a dangerous or non-dangerous for purposes of parole eligibility. The Court further orders that the suspended portion of the sentence shall be upon conditions as set forth in the November 23, 1994 judgment. The Court further orders that' the defendant shall pay to the Lake County Drug Fund the sum of Four Thousand Five Hundred Dollars ($4,500.00), which the defendant has previously paid. The Court further orders that the defendant shall pay surcharges of totalling Four Hundred Fifty Dollars ($450.00), as required by law, which shall be paid to the Clerk of the District Court in monthly payments commencing upon the defendant’s release from the Montana State Prison and each month thereafter until paid in full. The Court further orders that the defendant shall pay the mandated supervisory fee of One Hundred Twenty Dollars ($120.00) per year, prorated at Ten Dollars ($10.00) per month, for the number of months under supervision. Payments on the fee shall be made in the amount of Thirty Dollars ($30.00) per quarter to the Clerk of the District Court.

On May 12, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct. The Sentence Review Division finds that the sentence is the same as that provided for in the Plea Agreement.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Richard Champion for representing himself in this matter.


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Harold (Kent) Dreier, Defendant.
    NO. DC 93-197 DECISION
    DATED this 23rd day of May, 1995.
   On October 24, 1994, the Court found the defendant guilty under Count I of Forgery, a Felony; guilty under Count 2 of Theft, a Felony; guilty under Count 3 of Theft, a Felony; and guilty under Count 7 of Theft, a Felony. For each count, the offenses of Theft and Forgery, all Felonies, the defendant is committed to the Department of Corrections for a period of ten (10) years. The sentences imposed under each count shall be served concurrently. The court respectfully makes the following recommendations to the Department: a) That the defendant should be placed at a half-way house or pre-release center as soon as possible after the initial processing phase of his sentence, b) The defendant should pay restitution to Jerry Arbini, d.b.a. Three Rivers Disposal in the amount of $141,604.74, in reasonable payments as set by the department. 3. The defendant is designated a non-dangerous offender for purposes of parole release. 4. The defendant shall receive credit for such days that the defendant shall serve at the Gallatin County Detention Center after October 21, 1994, until his transportation to the Montana State Prison by the Gallatin County Sheriff.

On May 12, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Michael Sherwood, attorney from Missoula. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence is hereby amended to read as follows:

The defendant shall be committed on Counts I, II, III & VII to the Department of Corrections for a period of ten (10) years. The last five (5) years of which shall be suspended. Counts I, II, III & VII shall run concurrently. The suspension will be on the condition that the defendant be a law abiding citizen under the supervision of the Department of Corrections. The defendant will pay restitution in the amount of $141,000.00.

The reason for the amendment is that the Sentence Review Division deems it appropriate that the last five years be suspended in order to allow the defendant to make restitution to the degree that he is able.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Michael Sherwood, attorney from Missoula for his assistance to the defendant and to this Court.


author: JUSTICE WEBER, JUSTICE LEAPHART,

text:
    NFC PARTNERS, a partnership, Plaintiff and Appellant, v. STANCHFIELD CATTLE COMPANY, a Montana corporation; ROSALEE RICHARDSON, Clerk and Recorder of Beaverhead County, Montana; DEK KETCHUM; RENEE BERENSON; BILL MARKOVICH; SIDNI MARKOVICH; LANNY M. BEATY; SUE A. BEATY; DENNIS OSSELLO; BRENDA OSSELLO; JACK McCLOSKEY; HELEN McCLOSKEY; MARK MATTIOLI; LISA LOVELL; MAX MATTIOLI; and MADISON MATTIOLI, Defendants and Respondents.
    No. 95-022.
    Submitted on Briefs June 1, 1995.
    Decided November 14, 1995.
    52 St.Rep. 1115.
    905 P.2d 1106.
    274 Mont. 46.

      For Appellant: James H. Goetz and Robert Baldwin, Goetz, Madden and Dunn, PC., Bozeman.
    For Respondent: Ross P. Richardson, Attorney at Law, Butte; Richard J. Orizotti, Poore, Roth & Robinson, Butte; Thomas R. Scott, Comity Attorney, Dillon.
    THE HONORABLE SHERLOCK, District Judge, sitting for
   JUSTICE WEBER,

delivered the Opinion of the Court.

NFC Partners, a partnership, appeals an order of the Fifth Judicial District Court, Beaverhead County, which held that a certain Certificate of Survey filed in the office of the Beaverhead County Clerk and Recorder was properly filed so as to effect a division of land pursuant to the Montana Subdivision and Platting Act. We reverse the decision of the District Court.

We state the issue on appeal as follows:

Did the District Court err when it determined that a Certificate of Survey that was filed before the internal property monuments were set and before the corner records were filed was “properly filed” so as to create a legal division of land under the Montana Subdivision and Platting Act?

FACTUAL BACKGROUND

Respondent Stanchfield Cattle Company (Stanchfield) owns certain real property in Beaverhead County, Montana. In June of 1989, Stanchfield and appellant NFC Partners (NFC) entered into a “Timber Sales Agreement and Right of First Refusal.” Pursuant to the right of first refusal, if Stanchfield ever desired to sell its property and received a bona fide offer for the purchase of the property, it would provide notice to NFC. NFC would then have forty-five days in which to exercise its right of first refusal to purchase the property on identical terms as the offer.

Sometime after signing the right of first refusal, Stanchfield began taking steps to subdivide a portion of its property. Stanchfield attempted this subdivision by preparing a Certificate of Survey (COS) pursuant to the provisions of the Montana Subdivision and Platting Act, §§ 76-3-101 through -614, MCA (the Act). This COS, designated COS 792, depicts nineteen parcels of property, each being over twenty acres in size and encompassing a total of approximately 491 acres.

Stanchfield retained Bill Anderson, a registered land surveyor, to prepare COS 792 during the winter of 1992-93. Anderson completed the field survey work in the early part of January 1993, and had the survey reviewed for errors and certified by an examining land surveyor on February 11, 1993. COS 792 was filed in the office of the Beaverhead County Clerk and Recorder on February 12, 1993.

At the time COS 792 was filed, however, the internal property monuments had not been set and Anderson made the following notation on the face of the COS: “NOTE: Property Corners will be set by July 1,1993. Snow conditions prevent setting corners at this time.” Anderson physically set the internal monuments on March 23, 24 and 25, 1993. Additionally, while preparing COS 792 Anderson found and used four brass-capped monuments set by the Bureau of Land Management which designated the exterior boundaries of the surveyed property. Anderson described these monuments as “public land survey corners” and filed corner cards on the corners on August 31, 1994.

After COS 792 was filed and the property monuments were set, respondents Ketchum, Berenson, Markovich, Beaty, Ossello, McCloskey and Mattioli submitted offers to purchase various of the parcels created by COS 792. Stanchfield provided NFC with notice of the offers, pursuant to the right of first refusal. NFC then filed this action in Beaverhead County requesting the District Court to declare COS 792 invalid and enjoin any sales of the parcels depicted in the COS. NFC also sought an injunction to restrain respondent Rosalee Richardson, Beaverhead County Clerk and Recorder, from accepting for recordation any instrument purporting to transfer any interest in the properties.

The District Court held that physically setting the property monuments after filing the COS did not violate the spirit and intent of the Montana Subdivision and Platting Act and thus did not invalidate the survey. The District Court therefore denied NFC’s petition for injunctive relief. It is from this decision that NFC appeals. The District Court also concluded that the right of first refusal granted to NFC by Stanchfield continued to be a valid and enforceable property right. This conclusion was not appealed by any party and is not an issue before us.

DISCUSSION

At the time COS 792 was filed, the Montana Subdivision and Platting Act provided that a “subdivision” was “a division of land or land so divided which creates one or more parcels containing less than 20 acres ... in order that the title to or possession of the parcels may be sold, rented, leased, or otherwise conveyed ....” Section 76-3-103(15), MCA (1991). Thus, the nineteen parcels that Stanchfield wished to create in 1992-93 would not have been considered to be a subdivision because each parcel was over twenty acres in size.

The Act defines “division of land” as the segregation of one or more parcels of land from a larger tract held in single or undivided ownership by transferring or contracting to transfer title to or possession of a portion of the tract or properly filing a certificate of survey or subdivision plat establishing the identity of the segregated parcels pursuant to this chapter.

Section 76-3-103(3), MCA (emphasis added).

Because the division of land that Stanchfield wished to make was not considered to be a subdivision, Stanchfield did not need to comply with the requirements of the Act pertaining to the creation of a formal subdivision plat and subdivision review. Pursuant to the above definition of “division of land,” Stanchfield opted instead to create the parcels through the filing of a certificate of survey.

Stanchfield was aware, however, when it hired Anderson to prepare COS 792, that the 1993 Legislature was considering amendments to the Act including an amendment to change the definition of a subdivision. The Legislature did amend the definition of subdivision to include any parcel of less than 160 acres, rather than only twenty acres. Section 76-3-103(14), MCA (1993). This amendment became effective on April 6,1993.

Anderson testified that Stanchfield was concerned about getting the COS filed before any amendments to the Act changing the twenty-acre maximum for a subdivision would become effective. If the COS was not filed before the changes in the Act went into effect, Stanchfield would have to go through formal subdivision procedures to create the parcels he intended to create.

Anderson also testified that because of the amount of snow on the ground at the time he did the survey work he could not set the internal monuments on the property right away. Therefore, because of the time constraints of getting the COS filed before any amendments to the Act were effective, Anderson filed COS 792 without setting the monuments and made the notation on the COS that the monuments would be set before July 1, 1993. According to Anderson, this was a common practice among surveyors because of poor weather conditions in the winter months.

The Act provides that a division of land may be made by “properly filing a certificate of survey....” Section 76-3-103(3), MCA. Part of the requirements of filing a COS is that it “shall be legibly drawn, printed, or reproduced by a process guaranteeing a permanent record and shall conform to monumentation and surveying requirements promulgated under this chapter.” Section 76-3-404(3), MCA. Pursuant to § 76-3-403, MCA, the Department of Commerce has promulgated regulations regarding monumentation and surveying requirements.

The Department of Commerce has set out uniform standards for Certificates of Survey in Rule 8.94.3002, ARM, which provides, in part

A certificate of survey may not be filed by the county clerk and recorder unless it complies with the following requirements:

(4) The certificate of survey shall show or contain on its face or on separate sheets referenced on its face the following information only:

(f) All monuments found, set, reset, replaced or removed describing their kind, size, location and giving other data related thereto.

(g) The location of any corners of sections or divisions of sections pertinent to the survey.

Additionally, the uniform standards for monumentation provide, in part, as follows:

All monuments must be set prior to the filing of a plat or certificate of survey except those monuments which will be disturbed by the installation of improvements. Such monuments may be set subsequent to filing if the surveyor certifies that they will be set before a specified date.

Rule 8.94.3001(1)(d), ARM (emphasis added).

Thus, under the mandatory language of the Act and the regulations promulgated thereunder, a COS may not be filed unless it shows all of the monuments that are set during the survey. These monuments must be set prior to the filing of the COS. The only exception to this requirement is when the construction of improvements on the property would disturb the location of the monuments. There is no exception to this requirement for when weather conditions make it difficult or impossible to set the monuments. Anderson and Stanch-field did not state, however, that the monuments were not set due to construction activity. The only reason set forth on the face of COS 792 was that snow conditions prevented setting the monuments. The statutes and regulations do not provide this reason as an exception to the monumentation requirements.

The District Court relied in part on Anderson’s testimony that it was a common practice among surveyors to set property monuments after filing a COS when the weather conditions are poor in determining that such action did not violate the spirit and intent of the Act. This is not, however, what the statutes and regulations state. The Act contains several specific requirements for filing a COS and we cannot allow what might be a common practice among surveyors to override the clearly stated laws and regulations as set out by the legislature and the Department of Commerce. Common practice in an industry or profession may be of some guidance when there is no stated law or the law is unclear, but this is not the situation here. We must enforce the laws of the State as enacted and cannot insert into them what is not there to begin with. Section 1-2-101, MCA.

The Montana Subdivision and Platting Act states that in order to create a division of land by the COS process, the COS must be “properly” filed. The Act and its regulations further provide that the proper filing of a COS requires that all internal property monumentation must be set prior to the filing of the COS. When Stanchfield, through surveyor Anderson, filed COS 792, it had not set the internal property monuments. The reason for not setting the monuments did not meet the only exception to this requirement provided for in the regulations. Thus, Stanchfield did not “properly” file COS 792 and did not create a valid division of land under the Act.

This Court reviews a District Court’s conclusions of law to determine if those conclusions are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. We hold that the District Court erred in concluding that Stanchfield “properly” filed COS 792 and created a valid division of land when the internal property monuments were not set prior to filing the COS.

Based on the above, this matter is reversed and remanded for further proceedings consistent with this Opinion.

JUSTICES HUNT, NELSON and TRIEWEILER concur.

JUSTICE LEAPHART,

dissenting.

I dissent from the Court’s opinion and I would affirm the judgment of the District Court. It appears that Stanchfield was trying to complete the Certificate of Survey (COS) before the new law went into effect on April 6, 1993. To meet that deadline, Stanchfield filed the COS before the monuments had been set on the property. However, the internal monuments were set in March before the new law took effect and before any sales had been made. The ARMs contemplate that monuments can be set after the filing of the COS if the installation of improvements would interfere with their placement. 8.94.3001(l)(d), ARM.

In this case, according to industry custom, the monuments were not set because of the snow and weather conditions. The Court asserts that improvements are the only recognized exception to the requirement that monuments be set prior to filing the COS. Even if improvements are the only exception, the District Court found that:

while the regulations and statutes generally requir [e] monuments to be set prior to filing the certificate of survey, they clearly recognize that conditions may make that impractical. Here, because of weather and uncertainty as to the construction of roads or other improvements, etc., the surveyor was unable to set the monuments prior to filing the COS .... [Emphasis added.]

This finding, which the majority fails to address, brings this case within the improvements exception. The parties agree that the purpose of the COS is to disclose “facts pertaining to boundary locations” and to “allow others to find the boundaries depicted thereon.” Given that the COS and the monuments were completed before the sale in question, the agreed upon purpose was satisfied.

To satisfy the majority, all that Stanchfield would have been required to do is refile the COS after the monuments had been set. Here, the monuments were set before the new law went into effect and before any sales had been made. In this case, the fact that monuments were not set until approximately six weeks after COS 792 was filed does not harm the public or NFC. To require Stanchfield to refile the COS after the monuments had been set would have been to require a useless act.

Furthermore, the penalty for violating the Montana Subdivision and Platting Act is a criminal sanction. The action can be brought by the county attorney. Section 76-3-105, MCA, provides:

Any person who violates any provision of this chapter or any local regulations adopted pursuant thereto shall be guilty of a misdemeanor and punishable by a fine of not less than $100 or more than $500 or by imprisonment in a county jail for not more than 3 months or by both fine and imprisonment. Each sale, lease, or transfer of each separate parcel of land in violation of any provision of this chapter or any local regulation adopted pursuant thereto shall be deemed a separate and distinct offense.

The appropriate remedy would have been a possible criminal action, not an action by NFC to invalidate the COS. The Court’s opinion ignores the reality of the situation and permits NFC to prevail based upon a technicality that did not impair NFC’s rights. Accordingly, I would affirm the District Court.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA, Plaintiff, vs. Maida Lorraine Eaton, Defendant.
    NO. DC 94-87 DECISION
   On March 15, 1995, the Court ordered that the defendant be punished in the Women’s Correctional Facility for a term of ten (10) years on Count I: Criminal Sale of Dangerous Drugs, a Felony, with three (3) years suspended; and for a term of five (5) years on Count IV: Criminal Possession With Intent To Sell, a Felony, with all suspended. The sentence imposed on Count IV shall run consecutive to the sentence imposed on Count I, for a total sentence of fifteen (15) years, with eight (8) years suspended. The defendant shall receive credit for time served in the Lake County Jail, which as of the date of this judgment totals one (1) day. The Court at this time does not make a designation of the defendant as a dangerous or non-dangerous offender for purposes of parole eligibility. The Court further orders that the suspended portion of the sentence shall be upon the following conditions, and the Court reserves the right to impose additional conditions of probation as stated in the March 15,1995 judgment. The Court further orders that the defendant shall pay to the Lake County Drug Fund the sum of One Thousand Five Dollars ($1,500.00) on Count I, and the sum of One Thousand Dollars ($1,000.00) on Count IV. The Court further orders that the defendant shall pay surcharge of One Hundred Fifty Dollars ($150.00) on Count I, and One Hundred Dollars ($100.00) on Count IV, as required by law. The Court further orders that the defendant shall pay the mandated supervisory fee of One Hundred Twenty dollars ($120.00) per year, prorated at Tan Dollars ($10.00) per month, for the number of months under supervision. Payments on the fee shall be made in the amount of Thirty Dollars ($30.00) per quarter to the Clerk of the District Court. The Court further orders that the drug fund fine, and surcharge shall be paid to the Clerk of the District Court in monthly payments as determined by her probation officer, commencing thirty (30) days after her release from the Women’s Correctional Facility, and shall be paid in full at least thirty (30) days prior to her discharge from probation.

On May 12, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Connie Camino, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence is hereby amended to read as follows:

1. The defendant shall be committed on Count I, Criminal Sale of Dangerous Drug, a Felony to the Women’s Correctional Facility for a period of ten (10) years, five (5) years of which shall be suspended.

2. The defendant shall be committed on Count IV, Criminal Possession With Intent to Sell, a Felony, to the Women’s Correctional Facility for a period of five (5) years, all of which shall be suspended.

DATED this 23rd day of May, 1995.

3. Counts I and IV shall run concurrently.

The reasons for the amendment are: 1. To make the term of the sentence more similar with those imposed throughout the state for similar offenses. 2. Defendant had no noted prior criminal record. 3. It is appropriate that the sentences on the separate counts should run concurrently. The offenses were committed at different times. However, the record reveals that the purchases from the same agent, who was employed with the same agency. The agent had knowledge of her activities and could have purchased all of the contraband at one time.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Connie Camino, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Ronald R. Gaines, Defendant.
    NO. 11246 DECISION
   On January 10, 1995 the Court found the defendant in violation of the conditions of his suspended sentence and it is the judgment of the Court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term of ten (10) years for suitable placement, which may include an appropriate community based program, facility, or a State Correctional Institution. It is the recommendation of the Court that the defendant be considered for placement at the Swan River Correctional Training Center. Due to the defendant’s failure to comply with the terms and conditions of his suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this order, except that he shall receive credit from August 4, 1994 through August 23, 1994; and from December 14, 1994, through date of sentencing, January 10, 1995, for forty-eight (48) days jail time which he has previously served. For purposes of parole eligibility the defendant is designated a non-dangerous offender.

On May 12, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

DATED this 23rd day of May, 1995.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Ronald Gaines for representing himself in this matter.