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State v. Damon

Supreme Court of Montana

September 24, 2013

STATE OF MONTANA, Plaintiff and Appellee,
v.
SHAWN THEODORE DAMON, Defendant and Appellant.

ORDER

On September 6, 2013, Shawn Theodore Damon (Damon) filed a Petition for an Out-of-Time Appeal. For the reasons set forth below, his petition is denied.

On January 6, 2006, Damon was sentenced in Cascade County District Court Cause No. DC-2005-347(IN), to ten years in prison, all suspended, for felony Obstructing Justice.

On March 22, 2011, Damon was arrested on a bench warrant and his probation officer filed a petition to revoke his suspended sentence. The District Court subsequently revoked Damon's suspended sentence by Order dated August 22, 2011. Damon now seeks to appeal this Order.

Damon argues that the court failed to afford him a hearing within 72 hours from his arrest under § 46-23-1012, MCA, or to orally deputize an arresting officer and deliver a written authorization to the custodial facility within 12 hours. He also faults his probation officer for failure to provide him a hearing within 36 hours and his counsel for failure to appeal his sentence.

Damon had the right to file a timely appeal once a final order was entered in August 2011. He argues that he asked his attorney to appeal the revocation order on the above-stated grounds, but counsel failed to do so. Damon does not explain, however, why it took him over two years to seek an out-of-time appeal. M. R. App. P. 4(6) provides for granting an out-of-time appeal "in the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice." These circumstances have not been met here. Therefore,

IT IS ORDERED that the Petition for an Out-of-Time Appeal is DENIED.

The Clerk is directed to provide a copy hereof to counsel of record and to Shawn Theodore Damon.


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