Victim released unharmed

2002 MT 122
STATE OF MONTANA,v.
DAVID WAYNE NELSON
1. Whether the District Court abused its discretion when it restricted the scope of Nelson's cross-examination of his accomplice;
2. Whether the District Court's instruction to the jury on "fabrication by the defendant" prejudiced Nelson; and
3. Whether the District Court erred when it sentenced Nelson to the maximum sentence for Aggravated Kidnaping, even though the evidence established the victim had been released in a safe location without serious injury.
The District Court sentenced Nelson to twenty years with ten years suspended, even though both victims testified at trial that Shari was released in her home before Nelson and Fred left. Moreover, during sentencing, the District Court noted it was "mindful that [Nelson] terminated [his] involvement in these crimes before someone was seriously physically injured," and that neither victim was "seriously injured in a physical way."
The State concedes that under the facts of this case, the District Court erred in sentencing Nelson to more than the ten year maximum. We therefore remand this matter to the District Court for resentencing under § 45-5-303(2), MCA. Upon remand, the District Court may also address any inconsistency between the written and oral judgments as noted in ¶ 8 of this Opinion.
Affirmed in part, and remanded for resentencing.