On December 16, 2013, the defendant David Gary Burton, by counsel (Burton), filed a notice of appeal from a District Court order denying his motion to dismiss the prosecution against him on double jeopardy grounds. He did so premised in part upon our Order of November 19, 2013 in Cause No. Op 13-0771, denying his application for writ of supervisory control, in which we observed that in the event the District Court denied his motion to dismiss on double jeopardy grounds he would have the option of filing an interim appeal for the purpose of considering the merits of his double jeopardy claim.
On December 19, 2013, the State of Montana filed a motion to dismiss Burton's appeal as premature. This motion was held by the Clerk of this Court for response by Burton. According to M R. App. P. 3 and 16(2), Burton had 11 days within which to file a response to the State's motion. Burton failed to file a timely response. Accordingly, on January 7, 2014, this Court issued an Order granting the State's motion to dismiss Burton's appeal. On January 8, 2014, nine days after his response was due, Burton filed a motion asking this Court to accept his late filing of a response in opposition to the motion to dismiss, together with his response to the motion to dismiss his appeal (hereinafter Response). On January 21, 2014, the State filed its objections to Burton's motion to accept the late filing.
Setting aside for the moment the sufficiency of Burton's arguments urging us to accept his late filing, we look to the merits of his argument that his interim appeal should go forward. Burton cites to our observation in our Order of November 19, 2013, that he might have the option of an interim appeal if the District Court denied his motion to dismiss on double jeopardy grounds. Burton does not, however, provide any legal argument as to why his double jeopardy challenge actually merits an interim appeal. Instead, he argues that Burton has been incarcerated since December of 2011, and that his substantial rights have been affected by virtue of his languishing in jail. If anything, the fact of Burton's continuing incarceration would suggest that a trial on the merits of the State case should go forward sooner rather than later - not after an interim appeal has been exhausted.
In its objection to Burton's motion to accept the late filing of the Response, the State points out that its Second Amended Information contains multiple theft and robbery charges, plus three rape-related charges arising from a purported kidnapping and rape that occurred on December 8, 2011. The federal case, which according to Burton sets up the double jeopardy problem, charges felon in possession of firearms, robbery affecting commerce, and use of a firearm during a robbery, with a commission date of December 17, 2011. The charges in the federal case have not yet been tried. In fact, a suppression order entered in the Federal District Court with respect to some of the evidence seized from Burton is now the subject of an appeal by the United States to the Ninth Circuit Court of Appeals. Thus, neither the federal case nor the state case has yet resulted in an acquittal or conviction, nor has a former prosecution been terminated by a final order of judgment for the defendant that has not been set aside. One of the foregoing outcomes is a prerequisite to the application of § 46-11-504, MCA, Montana's double jeopardy statute.
While Burton hints that some of the evidence suppressed by the federal court may be offered during his state court trial, this is an evidentiary as opposed to a double jeopardy concern.
Furthermore, the State advises that on Burton's motion to sever, the District Court entered an order on December 3, 2013, severing the counts related to the burglary, aggravated kidnapping, and sexual intercourse without consent that ostensibly occurred on December 8, 2011, from those remaining counts in the Second Amended Information pertaining to burglaries and thefts that occurred in Lewis and Clark County around the same time that the crimes that form the basis of the federal charges were committed. There is thus yet another layer of separation between the state and the federal charges.
Turning to the State's procedural objection, we agree with the State that in order to allow an extension of time within which to respond to a motion, one must show "good cause" for the extension of time. M. R. App. P. 26(1). Burton has not shown good cause for failing to timely respond to the State's motion to dismiss his appeal. While this failure standing alone is grounds for denying Burton's motion to accept the late filing, we also conclude, premised on the foregoing discussion, that an interim appeal on double jeopardy grounds is not appropriate because the prerequisites for a double jeopardy challenge are not now present. Therefore,
IT IS HEREBY ORDERED that Burton's motion to accept the late filing of his Response to the State's motion to dismiss Burton's appeal is DENIED. This Court's Order dismissing Burton's appeal without prejudice, entered January 7, 2014, shall stand.
The Clerk of this Court is directed to provide notice of this Order to all counsel of record, and to the Honorable Kathy Seeley, Montana First Judicial ...