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On October 29, 2002, the defendant was sentenced to the following: Count I: Thirteen (13) month commitment to the Department of Corrections, followed by five (5) years probation, for the offense of DUI, a felony; Count II: Six (6) months in the Yellowstone County Detention Facility, to run concurrently with Count I, all suspended, for the offense of Operating a Motor Vehicle Without Proof of Liability Protection in Effect, a misdemeanor; and Count III: Six (6) months in the Yellowstone County Detention Facility, to run concurrently with Counts I and II, all suspended, for the offense of Driving While Privilege to do so is Suspended or Revoked, a misdemeanor.

On March 6, 2003, 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 Carl DeBelly. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he 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 and remanded to district court for purposes of applying the credit mandated by State v. Fisher.

Done in open Court this 6th day of March, 2003.

Chairperson, Hon. Katherine R. Curtis, Member, Hon. Marc G. Buyske and Member, Hon. Gary L. Day.

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