October 22, 2013
STATE OF MONTANA, Plaintiff and Appellee,
VICTOR GAYLEN SEBASTIAN, Defendant and Appellant.
Appellee State of Montana (State) has filed a motion to strike what it contends to be legal theories raised for the first time in a reply brief filed by Appellant Victor Gaylen Sebastian (Sebastian). The State argues that Sebastian raised legal theories for the first time in his reply brief, including the claim that the District Court's denial of his motion to continue his revocation hearing had resulted in his inability to present mitigating circumstances of a non-volitional violation, and that the District Court had not allowed him credit for time that he had served on probation. The State contends that Sebastian failed to raise these issues in his opening brief and that these issues do not respond to any new matter raised in the State's response brief.
Sebastian has filed a brief in opposition to the State's motion in which he argues that he did not raise any legal theories in the reply brief. He claims that the issues raised in his opening brief and that he continues to assert in his reply brief relate to whether the District Court's denial of his motion to continue his revocation hearing constitutes an abuse of discretion and a violation of his due process rights. He further argues that his reply brief directly addresses the argument presented in the brief filed by the State that Sebastian's due process claim is significant only to the extent that it affects a district court's decision whether to revoke a probationer's suspended sentence.
We deem it appropriate to take the State's motion under advisement so that we consider it in the context of the Court's review of all the briefs filed in this matter as well the record presented from the District Court. Accordingly,
IT IS HEREBY ORDERED that the State's motion to strike legal theories raised for the first time in Sebastian's reply brief is held in abeyance.
IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by mail to all counsel of record.