The Office of Appellate Defender (OAD) has filed a request, supported by affidavit, to be allowed to file an out-of-time notice of appeal on behalf of Michael Wesley Simpson in the above-entitled matter. OAD avers that a mailing delay was the cause of Simpson's failure to timely file his pro se notice of appeal. OAD reports that the State of Montana does not object to this motion. Mont. R. App. P. 4(6), provides:
In the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice, the supreme court may grant an out-of-time appeal. An out-of-time appeal must be requested by verified petition supported by affidavits, records, and other evidence establishing the existence of the extraordinary circumstances claimed. Extraordinary circumstances do not include mere mistake, inadvertence, or excusable neglect.
Simpson appeals from a restitution order of the district court that was issued on December 13, 2012. Accordingly, under Mont. R. App. P. 4(5)(b)(i), the notice of appeal would have been due no later than February 11, 2013. OAD points out that at the time, Simpson was incarcerated in Richland County, awaiting trial on a charge unrelated to this case. Simpson dated his hand-written notice of appeal February 1, 2013. February 1, 2013 is within the 60 day time-frame. However, Simpson's hand-written notice of appeal was not received by the Montana Supreme Court Clerk's office until February 15, 2013-four days late. Simpson also filed a motion to appoint counsel on that same day, which was granted by this Court on March 1, 2013. OAD posits that the delay in receipt by the clerk's office likely resulted from prison mailing processes. The late filing was discovered by counsel during his preparation of the opening brief.
OAD argues that not permitting Simpson to pursue his appeal under the circumstances would be a harsh result constituting a gross miscarriage of justice. We agree that Simpson's appeal should not be disqualified in light of his apparent efforts to file his appeal in a timely fashion and the State's lack of objection.
Therefore, IT IS ORDERED that OAD's motion to be allowed to file an out-of-time ...