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State v. Debus

Supreme Court of Montana

October 8, 2013

STATE OF MONTANA, Plaintiff and Appellee,
v.
MITCHELL LIBERTY DEBUS, Defendant and Appellant

ORDER

Mitchell Liberty Debus (Debus) has filed a Petition for an Out-of-Time Appeal. In November of 2012, Cascade County District Court committed Debus to 5 years at the Department of Corrections for a Partner/Family Member Assault conviction. The court recommended placement in the NEXUS program, directed the sentence to run concurrently with any other sentence Debus was serving, and credited him with 314 days of time served. Debus was at the time serving a Yellowstone County sentence for aggravated assault.

Thereafter, on January 11, 2013, the Yellowstone County District Court revoked Debus's sentence for Aggravated Assault, and imposed a 7-year suspended sentence; however, the court did not specify whether the sentence was to run concurrently or consecutively to the 2012 Cascade County sentence.

Debus complains here is that he is effectively serving a 12-year sentence rather than a 5-year sentence with 7 years suspended to run concurrently. Debus maintains that the Yellowstone County Clerk of Court refuses to provide him with a copy of his judgment without compensation, and it is from the Yellowstone County sentence that he intends to appeal. Other than complaining that he has not been provided a copy of the judgment, he offers no justification for the untimely appeal.

We note that when a Court fails to state whether sentences run consecutively or concurrently, by operation of law, the sentences run consecutively. Section 46-18-401(4), MCA.

Debus bears the burden of establishing that if this petition is denied, he will be subjected to "extraordinary circumstances amounting to a gross injustice." M. R. App. P. 4(6). He has failed to persuade the Court he will suffer such consequences. We note that Debus has the potential remedy of filing a motion for clarification of his sentence with the Yellowstone County District Court.

Debus has also requested that counsel be appointed to represent him. Since we have decided to deny this petition, we decline to consider the motion for appointment of counsel. 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 Mitchell Liberty Debus.


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