State v. Perkins

• Decision Date: 17 July 1969
• Docket Number: No. 11657,11657
• Citation: 457 P.2d 465,153 Mont. 361
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Lynn PERKINS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 465

457 P.2d 465

153 Mont. 361

The STATE of Montana, Plaintiff and Respondent, v. Lynn PERKINS, Defendant and Appellant.

No. 11657.

Supreme Court of Montana.

Submitted June 10, 1969.

Decided July 17, 1969.

William Dee Morris, argued, Helena, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., Helena, John C. Weingartner, Asst. Atty. Gen., argued, Helena, Oscar Hendrickson, County Atty., Chinook, for plaintiff and respondent.

JAMES T. HARRISON, Chief Justice.

Appeal from an order entered in the district court of Blaine County denying defendant's petition for postconviction relief.

This matter was previously before this Court on a motion made by the State to dismiss an appeal, and on December 13, 1967 we issued an Order which read:

'On November 30, 1967, plaintiff and respondent, The State of Montana, filed herein a motion to dismiss the appeal of the defendant and appellant, and caused service thereof to be made upon the defendant and his counsel.

'It appears from the motion that the defendant was convicted on May 9, 1967, in the district court of Blaine County of the crime of grand larceny on two counts and on May 11, 1967, he was sentenced to a term of imprisonment in the State Prison on each count; that thereafter and on the same day, May 11, 1967, defendant made a motion for a new trial which was on that date denied. Extensions of time were sought and granted for the purpose of preparing and filing a bill of exceptions but no transcript on appeal has been ordered so nothing has been done towards the settlement of a bill of exceptions. Defendant has been at all times represented by counsel of his own choosing.

'Section 94-8105, R.C.M.1947, provides that an appeal from a judgment in a criminal case may be taken within six months after its rendition, and from an order within sixty days after it is made. The time for taking an appeal from the judgment in this matter expired on November 11, 1967; the time for taking an appeal from the order denying the motion for a new trial expired July 11, 1967.

'On November 16, 1967, defendant, through his counsel, filed a Notice of Appeal, stating that the appeal is taken from the judgment of conviction and the order denying the motion for a new trial. By virtue of the law hereinbefore cited the notice comes too late, defendant has permitted the time for filing an appeal to expire.

'IT IS THEREFORE ORDERED that the motion to dismiss this appeal be, and it hereby is, granted and this appeal is dismissed ; the order admitting to bail pending appeal is dissolved, and the district court is directed to forthwith order defendant into custody and order his delivery to the State Prison at Deer Lodge, Montana, in accordance with the terms of the judgment heretofore rendered in the district court.

'Should defendant, after he has been confined in the State Prison, desire to make application for any form of post-conviction relief, and should his counsel desire to be heard thereon, if the application is promptly served and filed, the court will hear the matter at its January term, commencing January 9, 1968, on a date and at a time when it is convenient to the court during that calendar.'

As noted in the order the time for taking an appeal from the judgment of conviction expired before a Notice of Appeal was filed, but we did provide that if the defendant desired to apply for any form of post-conviction relief, if the application was promptly filed and served, we would hear the matter at our January 1968 term.

Over six months later defendant requested the district court to have copies of all records, minutes and transcript of the testimony prepared for him, at his expense, and the district court on July 10, 1968, ordered this to be done upon deposit by the defendant of the necessary funds to prepay such costs. Such deposit was made and the records, minutes and transcript of the testimony were so prepared. We point this out to indicate that defendant is not indigent and he was at all times and is now represented by retained counsel of his own choice.

Counsel filed a motion with this Court to reinstate the appeal, and on September 10, 1968, the following order was made:

'Lynn Perkins, appearing through counsel, has filed herein a motion for an order to reinstate appeal, file transcript and prepare briefs. From our file it appears that a motion to dismiss appeal was filed herein by the State of Montana on November 30, 1967, and no appearance having been made or cause shown why the motion should not be granted, the Court issued its order on December 13, 1967, dismissing the appeal.

'Our order, among other things, provided:

"Should defendant, after he has been confined in the State Prison, desire to make application for any form of post-conviction relief, and should his counsel desire to be heard thereon, if the application is promptly served and filed, the court will hear the matter at its January term, commencing January 9, 1968, on a date and at a time when it is convenient to the court during that calendar.'

'No steps were taken in response to this suggestion. By reason of the facts set forth in our order of December 13, 1967, disclosing that defendant had permitted the time for filing an appeal to expire, no purpose would be served by reinstating the appeal since the Court would lack jurisdiction to proceed therein.

'The motion is therefore denied.

'Counsel for defendant may make application for post-conviction relief in accordance with the law and the rules of this Court as previously stated in our former order.'

Finally, on November 15, 1968, eleven months after this Court had first offered to consider any application for post-conviction relief if it was promptly served and filed, defendant filed a motion in the district court seeking relief under the post-conviction statutes. To excuse the delay defendant alleges that his trial counsel refused to appear in any post-conviction relief proceeding and for that reason he was denied review by this Court of his conviction.

The state questions the jurisdiction of this Court to consider this appeal, submitting that defendant has waived any right he would have had by his failure to promptly proceed. We agree that this should be the rule but in view of the change in counsel and the fact that a post-conviction proceeding is involved, we will in this instance consider the various contentions of the defendant.

First we would observe that defendant did not submit any additional evidence in support of his motion in the district court, relying solely on the transcript of testimony, briefs and arguments, and he relies here upon these same records.

In support of his motion it is the contention of the defendant that (1) the court erred in giving instruction No. 4; (2) that defendant was denied his right to effective counsel; (3) that certain evidence was obtained by an unlawful search; (4) that the court erred in admitting plaintiff's exhibit 'C', and (5) that there was insufficient evidence to sustain his conviction.

Turning to the matter of instruction No. 4, the record discloses that the court on settlement of instructions asked counsel for the defendant if there was any objection to the instruction. None was offered and the instruction was given.

Section 94-7201(4), R.C.M.1947, provides that no cause shall be reversed by this Court for any error in instructions which was not specifically pointed out and excepted to at the time of settlement of the instructions. We have consistently followed this statute, some of the latest cases in which we have done so are State v. Campbell, 146 Mont. 251, 405 P.2d 978, 22 A.L.R.3d 824; State v. Bubnash, 142 Mont. 377, 382 P.2d 830. In any event, the instruction quoted section 94-2704.1, R.C.M.1947, and was proper in the circumstances here.

We will spend little time with the contention that defendant was denied effective counsel. He hired his own counsel for the trial and another to appear in...