September 10, 2013
WAYNE PERCY LINDSEY, III, Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.
The District Court record was filed for purposes of this appeal of a denial of a petition for postconviction relief on April 29, 2013. On July 10, we ordered Appellant Lindsey's counsel of record, David Avery, to file the opening brief on appeal within 30 days or risk dismissal of the appeal with prejudice and without further notice. On August 8, we granted Avery's motion for an extension of time until September 9 in which to file the opening brief. Avery has now moved for permission to withdraw from this case and for appointment of the Appellate Defender's Office to represent Lindsay on appeal.
The right to counsel at state expense does not extend to postconviction proceedings. In a non-death-penalty case, a trial court may appoint counsel to represent a postconviction relief petitioner only when a hearing is required, the state public defender's office asks to be appointed and demonstrates good cause for its appointment, or extraordinary circumstances exist that require the appointment of counsel to prevent a miscarriage of justice. Sections 46-8-103 and-104, MCA.
In the present case, Avery was not court-appointed at the trial court level, and no hearing was held on the petition for postconviction relief. The state public defender's office has not asked to be appointed for purposes of the appeal. Having reviewed the record, the Court has concluded the interests of justice do not require the appointment of counsel to represent Lindsey on appeal.
Therefore, IT IS ORDERED that David Avery is GRANTED leave to withdraw as counsel of record for Wayne Percy Lindsey, III, but that the motion for substitution of the Appellate Defender Office as counsel for Lindsey is DENIED.
IT IS FURTHER ORDERED that Lindsey is granted an extension of time until October 9, 2013, in which to prepare, file, and serve his opening brief on appeal.
The Clerk is directed to provide copies of this order to all counsel of record and to Wayne Percy Lindsey, III, personally.