JORGE TORRES,                                           ;
              Defendant     and Petitioner.


        This matter comes before the Court on petitioner                  Jorge Torres'
petition      for post-conviction        relief.       The facts which give rise to
this petition         are as follows:
         In July 1994, Torres was charged with aggravated                     assault,    a
felony,      pursuant to § 45-5-202, MCA. In February 1995, Torres pled
guilty      to the charged offense            and signed an Acknowledgement             of
Waiver of Rights            by Plea of Guilty           form.    In April      1995, the
District      Court sentenced Torres to a term of twenty years in the
Montana State Prison.              In June 1995, Torres filed               a motion to
withdraw       his guilty      plea,    which the District           Court denied in
December 1995.
        Torres subsequently          applied     for a sentence review with the
Sentence Review Division           of the Montana Supreme Court.              Before the
Sentence Review Division           heard the application,          Torres was advised
that the Sentence Review Division                  had the authority        to not only
reduce or affirm           the sentence,      but also to increase          it and that
there      were no rights         of appeal         from its      decision.        Torres
acknowledged         that    he understood        the consequences        of appearing
before the Sentence Review Division                  and stated that he wished to
proceed.
         Following      the hearing,     the Sentence Review Division              stated
that the reasons advanced for modification                     of the sentence were
insufficient        to hold that the sentence imposed by the District
Court was inadequate           or excessive.          However, the Sentence Review
Division       modified       Torres'      sentence by adding the restriction                     that
Torres not be considered eligible                    for parole or other release until
he had served seven years of the sentence imposed, during                                       which
time he must complete                   the anger management program and other
counseling         deemed appropriate            by the prison         staff.       The Sentence
Review Division            stated that its reasons for the restriction                           were
that during the sentence review hearing Torres exhibited                                absolutely
no remorse or concern for the victim                          of the crime,           illustrated
disdain       for the victim,             and accepted no responsibility                    for his
actions.
         Torres argues that the Sentence Review Division's                            restriction
renders his guilty             plea involuntary          because the District             Court did
not inform him of the effect                   of any penalty         enhancement provision
or special parole restriction                  pursuant to 5 46-12-210,              MCA. Torres
claims       that     since       the District           Court     sentenced         him without
informing        him that he could be designated                    ineligible        for parole,
the effect        of the Sentence Review Division's                  parole restriction            was
to render his guilty             plea involuntary.           Torres also argues that the
restriction          was improper            since     the Sentence             Review Division
determined that the reasons Torres advanced for modification                                   of his
sentence were insufficient                 to hold that the sentence imposed by the
District       Court was inadequate or excessive.
         The State of Montana filed                a response to the petition                arguing
that § 46-18-905,              MCA, provides         that a decision             of the Sentence
Review Division           is final       and cannot be appealed.                The State argues
that Torres'         petition       for post-conviction           relief      is, in effect,         an
appeal of the Sentence Review Division's                        decision        and is therefore
prohibited        by § 46-18-905,           MCA.
         In this Court's            July 30, 1996, order in Whitehorn v. State,
Cause No. 96-265, we reviewed the decision                           of the Sentence Review
Division       under a petition           for post-conviction            relief.      Section 46-
18-905,       MCA, provides            no avenue of appeal for a defendant                           to
challenge         the legality           of a decision           by the Sentence Review
Division.        Section 46-21-101, MCA, Montana's post-conviction                            relief
statute,       provides       that:
                                                  2
        A person adjudged guilty                of an offense           in a court of
        record      who has no adequate remedy of appeal and who
        claims . . . that the court was without                       jurisdiction      to
        impose the sentence            .       . may petition          the court that
        imposed the sentence or the supreme court to vacate,                           set
        aside, or correct        the sentence . . . .
Therefore,        we conclude that a petition                 for post-conviction         relief
or other        extraordinary       writ      is appropriate           for the purpose of
challenging        the decision      of the Sentence Review Division.
        In this case, the Sentence Review Division                          found there were
insufficient         reasons to find that Torres'                 sentence was inadequate
or excessive.          Rule 17 of the Rules of the Sentence Review Division
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.
Nonetheless,        the Sentence Review Division                modified Torres'       sentence
by restricting          his parole         eligibility.            Having found that           the
original      sentence was not inadequate,                 the Sentence Review Division
lacked jurisdiction           to alter       the sentence.
        After     due consideration          of the petition          and response,
        IT IS HEREBYORDEREDthat Torres' petition                        for post-conviction
relief      is GRANTED in regard to the Sentence Review Division's
modification         of Torres'      sentence and that provision                    is ordered
stricken       from the Sentence Review Division's                        decision    and from
Torres'      prison sentence.
        The Clerk is directed           to mail a true copy of this order to the
petitioner         personally,       to the Attorney                General       and to the
Yellowstone        County Attorney.
        DATED this Jl- r% day of August, 1996.




                                                3
    Justices




4
Justice        James       C. Nelson          specially          concurs        and dissents.
       I concur   in the result     of our order,      but I dissent    from the
procedural     mechanism    through     which   we are granting      relief      to
Tomes.      I am not satisfied      that    5 46-21-101,   MCA, serves      as the
authority           for this            order.         By its        language,            that     section         of the
Montana            Code         provides             a      postconviction                   remedy           from        an
unconstitutional                 or unlawful            sentence         imposed by a court.                    Here the
problem        is not from anything                      which the sentencing                     court      did,     but,
rather,          results           from       the     Sentencing             Review          Board       effectively
increasing           Torres'           sentence        in violation              of the Board's                own Rule
17,     which         prohibits             the     Board       from        increasing             or reducing              a
sentence          "unless          it     is deemed clearly                  inadequate            or excessive."
Since       the       District             Court's        sentence           was found             to be neither
inadequate           nor excessive,                the Board had no jurisdiction                             to modify
the sentence             in violation              of its own rules.
         The Sentence              Review Board is appointed                       by the Chief            Justice        of
the Supreme Court and functions                             as a review            division         of this        Court.
Section          46-18-901(l),                 MCA.         Accordingly,                this       Court        has the
responsibility                 and supervisory                   authority             to      insure        that       its
sentence          review          division          complies          with       the statutes               and rules
governing          the division's               operations          in the same manner that we have
such responsibility                      and authority            to insure           that       other    boards        and
commissions            appointed             by and supervised                 by this          Court act within
their      jurisdiction                and authority.               Art.      VII,       Sec. 2, Mont.Const.
         Rule       17, M.R.App.P.,                   codifies          this       Court's          constitutional
power "to hear and determine                             such original               and remedial              writs      as
may be necessary                       or proper           to     complete           the        exercise          of    its
jurisdiction",               and it is on that                  basis        alone,         I believe,           that     we
are authorized              to correct           the unlawful             sentence          modification           by the
Sentence         Review Board in this                     case.
         Similarly,             it was on that                basis        that     we were authorized                    to
enter       our July           30, 1996,            order      in Whitehorn,                 Cause No. 96-265.
While we entered                 our order in that case on the basis                                  of a petition
for postconviction                    relief,       the issue of the procedural                         mechanism         by
which the Sentence                    Review Board's            decision           was brought           before       this
Court       was not raised                   or addressed.                Our order             was correct;            the
procedural     mechanism under which we entered it was not.
        In my view,        § 46-21-101,      MCA, does not contemplate                   or
authorize     a petition     for postconviction        relief    from action by the
Sentence Review Board.           As long as the Board is acting within                 its
jurisdiction       and authority      under its       rules    and the applicable
statutes,     then its decision        is final.         Section      46-18-905,      MCA.
There is no appellate         review of the Board's decision             either     by way
of direct     appeal or postconviction        relief.
        By failing      to recognize     the proper basis on which we are
authorized       to deal with       Torres'    demand for         relief      (i.e.    our
discretionary      power of supervisory      control      over the review division
of this Court),        we are opening up an avenue for routine                 appellate
review of decisions        of the Sentence Review Board via postconviction
relief--a     remedy which is not authorized             by any of/he          governing
statutes.




Justice    Karla   M. Gray:
    I join    in the concurring        and dissenting       opinion    of Justice
Nelson.
