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State v. Strizich

Supreme Court of Montana

September 4, 2013

STATE OF MONTANA, Plaintiff and Appellee,
v.
JORY RUSSELL STRIZICH, Defendant and Appellant.

ORDER

Appellant Jory Russell Strizich (Strizich) has moved for the appointment of counsel in this appeal. To determine whether he is entitled to appointed counsel, we review the relevant procedural history.

On October 20, 2011, Strizich was charged with one count of felony theft for stealing a car and six misdemeanor charges. He was represented by counsel from the Office of Public Defender. He was later charged with felony escape (ADC -11-0245) and felony assault with a weapon (DDC-11-468).

The parties reached a plea agreement, which was filed with the court whereby Strizich agreed to plead nolo contendere to the felony theft charge and to pay restitution. The County Attorney agreed to dismiss the two later-filed charges based upon lack of proof. Following the plea colloquy, the Court accepted that the plea was voluntary. Since this was the first felony Strizich committed as an adult, the parties agreed to a joint recommendation of three years, deferred, which the Court imposed on May 24, 2012.

Strizich's sentence was revoked and on September 26, 2012, he was committed to the Department of Corrections (DOC) for five years.

On January 8, 2013, Strizich filed a pro se motion to withdraw the plea of nolo contendere. The District Court denied the motion by opinion and order on March 21, 2013.[1]

On May 23, 2013, Strizich moved the court for leave to reply to the response the State had filed prior to issuance of the order, for reconsideration of the order denying his motion to withdraw his plea and for a hearing. On May 24, 2013, the District Court issued an order denying defendant's motion for reconsideration as a procedural mechanism that is not available under court rules or the law, and ruled that based upon Uniform District Court Rule 2(e), the matter did not require a hearing.

Strizich filed a Notice of Appeal on June 10, 2013. The window for filing an appeal in a criminal case is 60 days from the date the appealable order was issued. M. R. App. P. 6(2); §§ 46-20-103-104, MCA.

Thus, the time for appealing from the September 26, 2012, revocation sentence has long since passed. The District Court issued a final order on March 21, 2013, denying the motion to withdraw the plea. By June 10, 2013, the time to appeal from this order had also elapsed.

The May 24, 2013, order denying Strizich's motions did not "affect the substantial rights of the defendant." Section 46-20-104(1), MCA. Consequently, there was no order affecting Strizich's substantial rights from which a timely appeal could be taken. The March 21, 2013, order denying the motion was the conclusive, final order.

Under these circumstances, we are moved sua sponte to dismiss this appeal. Having reached this result, there is no need to consider the motion for appointment of counsel.

IT IS ORDERED that this appeal is DISMISSED, without prejudice to any rights Strizich may have pursuant to §§ 46-21-101-105, MCA, to seek postconviction relief in the District Court.

The Clerk is directed to provide a copy hereof to counsel of record and to Jory Russell Strizich.


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