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Weller v. State

Supreme Court of Montana

November 19, 2013

SHAWN HOWARD WELLER, Petitioner,
v.
STATE OF MONTANA, Respondent.

ORDER

Petitioner Shawn Howard Weller (Weller) has filed a "Writ to Show Cause" why the District Court that presided over his Lewis and Clark County Cause No. CDC-2007-207 refuses to abide by court rules by failing to issue a ruling upon his July 1, 2013 "Motion to Set Aside Judgment Immediately." Weller maintains that the District Court is vindictive. He further contends that the court's failure to abide by the 60-day rule contained in M. R. Civ. P. 52(d) constitutes cruel and unusual punishment, deprives him of his due process rights, and restrains him illegally.

Weller was convicted in a jury trial of felony driving under the influence of alcohol (DUI), for which he was sentenced in March of 2008 as a persistent felony offender, and received a 22-year commitment to the Department of Corrections (DOC), with 17 years suspended. A petition to revoke was filed in March 2012 resulting in revocation of Weller's parole. The District Court ultimately sentenced him on July 19, 2012 to a 17-year commitment to the DOC.

Weller contends that on May 31, 2012, the District Court granted the State of Montana's motion to amend the petition to revoke over Welter's objection. He maintains that M. R. Civ. P. 61 regarding harmless error renders Weller's criminal judgment void on its face and justifies granting him a new trial.

Weller previously has maintained that 2008 court transcripts were altered by court officials. He has filed a notice to the Court, in which he essentially threatens to expose the court's refusal to provide him with the transcripts and the illegal altering of the transcripts.

Weller asks this Court to require the District Court to issue an order to set aside a criminal judgment. Montana Rule of Civil Procedure 52 and 61 are applicable to civil matters in the district courts. Title 46, Chapters 1-19, MCA, govern criminal procedure in district courts. Consequently, Weller's citations to civil rules are inapplicable and unpersuasive.

This Court is familiar with Weller, his convictions, and his conflicts with the criminal justice system. We have considered eight different proceedings before this Court at his behest: one appeal, two petitions for writs of habeas corpus, two petitions for writs of supervisory control, a postconviction appeal, a revocation appeal and the instant petition. (DA 08-0207 State v. Shawn H. Weller, OP 09-0415 Weller v. Mahoney, OP 10-0566 Weller V. Mahoney, OP 11-0337 Weller v. State, DA 11-0587 Weller v. State, DA 13-0143 State v. Shawn Weller, and OP 13-0247 Weller v. Seeley). Weller has not prevailed on any issue presented in any of these cases.

This Court is not aware of any writ that may be available to Weller whereby he would be entitled to any relief.

IT IS ORDERED that the petition for a writ to show cause is DENIED.

The Clerk is directed to provide a copy hereof to counsel of record and to Shawn Howard Weller.


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