Motion to Amend Assault Sentence In Montana
By order titled Judgment of Conviction and Sentence dated December 18, 1998, the Defendant was sentenced on two counts of assault, a felony, to concurrent terms of 10 years in the Montana State Prison with 5 years suspended plus a consecutive 3 year term for use of a weapon.
Defendant had been found guilty after a jury trial and has appealed that conviction to the Supreme Court.
The Defendant also filed a Motion to have his sentence amended to eliminate the 3-year weapon enhancements. This Court deems itself to retain jurisdiction to consider that issue.
The Defendant's motion is made pursuant to the recent Supreme Court cases of State v. Guillaume, 975 P.2d 312 (1999) and State v. Nichols, 56 State Reporter 827 (1999).
The State concedes the Defendant's position but argues that the case should be set for re-sentencing. the Court determines that it would not be appropriate to reset the case for sentencing and that Defendant is entitled to have the weapon enhancements removed. Accordingly,
IT IS HEREBY ORDERED that said sentencing order is amended to eliminate the consecutive sentence of 3 years for use of a weapon on each, Count I and Count II.
The Defendant remains sentenced to 10 years in the Montana State Prison with 5 years suspended on each count to run concurrent.