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Lacey v. State

Supreme Court of Montana

August 28, 2013

JOHN BRANDON LACEY, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

ORDER

Representing himself, Petitioner John Lacey filed a Notice of Appeal from a June 18, 2013 order from the Third Judicial District Court, Powell County, denying a writ of habeas corpus. We granted Lacey leave to proceed without paying the filing fee.

In 2009, Lacey was sentenced in the Eighteenth Judicial District Court, Gallatin County, for sexual intercourse without consent and was sentenced to 40 years in prison, with 20 years suspended. The District Court denied his habeas corpus petition on the basis that the Board of Pardons and Parole did not exceed its authority or act improperly in denying Lacey parole. Memo and Order Denying Petition for Writ of Habeas Corpus, Lacey v. Kirkegard, No. DV 13-51 (Mont. 3'^ Jud. Dist. Ct. June 18, 2013).

This Court or a district court has jurisdiction to grant or deny a petition for a writ of habeas corpus. Morrison v. Mahoney, 2002 MT 21, ¶ 8, 308 Mont. 196, 41 P.3d 320. Res judicata is inapplicable to a subsequent original petition for a writ of habeas corpus. Morrison, ¶ 8 (citing In re Hart, 178 Mont. 235, 241, 583 P.2d 411 (1978)). Since this Court has jurisdiction to grant or deny relief in a subsequent original petition for a writ of habeas corpus, a party may not appeal from a district court's order denying a petition for writ of habeas corpus. Rather, for this Court to consider a habeas corpus petition, a party must file an original petition in this Court. M. R. App. P. 14(1); Morrison, ¶ 8; Johnson v. Mahoney, 2009 MT 275, ¶ 5, 352 Mont. 136, 217 P.3d 1025.

IT IS THEREFORE ORDERED that the appeal is DISMISSED, without prejudice.

The Clerk is directed to provide a copy hereof to Hon. Ray J. Dayton, to counsel of record and to John Brandon Lacey.


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