STATE OF MONTANA, Plaintiff, vs. DOUGLAS A. KIRKALDIE, Defendant, 313 Mont. 4

On July 10, 2001, the defendant was sentenced to a thirteen (13) month commitment to the Department of Corrections, followed by four (4) years probation, for the offense of DUI, a felony. On February 21,2002, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The defendant was not present, but was represented by Brock Albin. The state was not represented.

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

Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that "the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (§46-18-904(3), MCA). The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive. Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed. Done in open Court this 21st day of February, 2002.

DATED this 8th day of March, 2002. Chairman, Hon. David Cybulski, Member, Hon. Marc Buyske and Alt. Member, Hon. Douglas Harkin.