State ex rel. Bretz v. Sheriff of Lewis and Clark County, 13095

Decision Date23 July 1975
Docket NumberNo. 13095,13095
Citation539 P.2d 1191,167 Mont. 363
PartiesSTATE of Montana ex rel. L. R. BRETZ and Merril Cline, Petitioners, v. SHERIFF OF LEWIS AND CLARK COUNTY and Roger Crist, Warden of the Montana StatePenitentiary, Deer Lodge, Montana, Respondents.
CourtMontana Supreme Court

PER CURIAM:

Original proceeding for a Writ of Habeas Corpus by two convicted inmates of the Montana State Prison. Petitioners seek release from custody on two grounds: (1) That their conviction is in violation of the double jeopardy provisions of the state and federal constitutions, and (2) that they are entitled to release on bail pending appeal.

Briefs and memoranda were filed, oral argument was heard, and the matter was submitted to the Court for decision.

We deny relief to each petitioner on all grounds.

We hold that the double jeopardy question has previously been ruled upon adversely to petitioners in State v. Cunningham, Mont., 535 P.2d 186, 32 St.Rep. 433. In the absence of a transcript of proceedings at the trial of petitioners on which Cunningham is distinguishable; and in the absence of a definitive ruling by the United States Supreme Court to the contrary; and because that issue may be raised on appeal, we hold that petitioners are not entitled to release from imprisonment at this time on this ground.

We further hold that petitioners are not entitled to release on bail pending appeal. There is no constitutional right to bail pending appeal from a conviction under state constitutional provisions providing that all persons shall be bailable, except for capital offenses where the proof is evident or the presumption great. Ex parte Voll, 41 Cal. 29; Anno. 19 A.L.R. 807; Anno. 45 A.L.R. 458. The right to bail under such circumstances is purely statutory, City of Sioux Falls v. Marshall, 48 S.D. 378, 204 N.W. 999, 45 A.L.R. 447, 452, and cases cited therein. The applicable Montana statute, section 95-1109, R.C.M1947, provides:

'After conviction of an offense not punishable by death, a defendant who intends to appeal may be admitted to bail:

'(a) As a matter of right, from a judgment imposing a fine only; or any judgment rendered by a justice or police court.

'(b) As a matter of discretion in all other cases.' (Emphasis supplied).

This Court has previously held under the predecessor to this statute that the right to bail pending appeal from conviction of a felony is discretionary with the district court, and where there is no abuse of discretion shown, this Court will not interfere. Bubnash v. State, 139 Mont. 639, 366 P.2d 867. To the same effect under the present statute, see State v. Kotarski, 154 Mont. 309, 462 P.2d 873.

Petitioner Bretz argues that here there was no basis on which the judge could have exercised his discretion to deny bail pending appeal. He points out there was nothing before the district court to indicate that he was a poor bail risk.

In addition to the presentence investigation report, the district judge had before him other matters alluded to in the following statements made at the hearing of petitioner to be admitted to bail:

'MR. DZIVI: Your Honor, the defendant Bretz participated in the preparation and filing against one of the State's principle witnesses, Nona Wampole, in two law suits designed to intimidate her, to frighten her from testifying in this action, and because of his friends and acquaintances, to visit Richard Roanne and his wife in Kalispell, Montana, and advise them that in the event they...

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9 cases
  • Crist v. Bretz
    • United States
    • United States Supreme Court
    • 14 Junio 1978
    ...to terms of imprisonment. The Montana Supreme Court, which had previously denied appellees habeas corpus relief, State ex rel. Bretz v. Sheriff, 167 Mont. 363, 539 P.2d 1191, affirmed the judgment as to Bretz on the ground that under state law jeopardy had not attached in the first trial. S......
  • Cunningham v. DC OF 13TH JUD. DIST. OF MONT.
    • United States
    • U.S. District Court — District of Montana
    • 31 Diciembre 1975
    ...corpus with the Supreme Court of Montana, alleging double jeopardy. This was denied by that court on July 23, 1975. Bretz v. Sheriff, Mont., 539 P.2d 1191 (1975). On September 2, 1975, the Supreme Court denied a rehearing. A trial commenced in the District Court of the First Judicial Distri......
  • State v. Hagerud
    • United States
    • United States State Supreme Court of Montana
    • 17 Noviembre 1977
    ...(1977) (this was a habeas corpus proceeding in Federal Court after relief was denied in state court sub. nom. State ex rel. Bretz and Sheriff, 167 Mont. 363, 539 P.2d 1191 (1975)). However, under neither the federal rule nor the Montana rule does jeopardy attach prior to the commencement of......
  • Kordelski v. Cook
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 19 Diciembre 1980
    ...93 Idaho 145, 456 P.2d 789 (1969) and State v. Kerrigan, 98 Idaho 701, 571 P.2d 762 (1977); State ex rel Bretz v. Sheriff of Lewis and Clark County, 167 Mont. 363, 539 P.2d 1191 (1975) and State v. Bretz, 575 P.2d 44 (Mont.1978); and State v. Smith, 84 Wash.2d 498, 527 P.2d 674 In In Re Pod......
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