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State v. Harper

Supreme Court of Montana

February 4, 2014

STATE OF MONTANA, Plaintiff and Appellee,
v.
BRENT AARON HARPER, Defendant and Appellant.

ORDER

On January 13, 2014, the State of Montana, by counsel, filed a motion to dismiss the appeal of the defendant Brent Aaron Harper, together with the affidavit of Penny Martin, court reporter for the Honorable Jeffrey Sherlock. The basis for the motion is that despite representations to the contrary, counsel for Harper failed to order a transcript of the trial proceedings. Harper did not file a timely response to the State's motion to dismiss, but sought and received an extension of time until February 3, 2014, within which to respond to the State's motion. On February 4, 2014, counsel for Harper filed a response to the motion to dismiss, stating that Harper "consents and stipulates to the dismissal of his appeal in this matter with prejudice." The pleading was signed by Harper's attorney but not by Harper personally.

M. R. App. P. 16(4) provides that a party's motion to voluntarily dismiss his appeal must be signed by both the moving party and his counsel. Because Harper's concession was made in response to the State's facially meritorious motion to dismiss, Harper's stipulation does not constitute a voluntary motion to dismiss. Therefore, the signature of counsel on Harper's behalf is sufficient. Based on the foregoing,

IT IS HEREBY ORDERED that the State's motion to dismiss Harper's appeal is GRANTED. Harper's appeal is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the Clerk of this Court shall serve a copy of this Order upon all counsel of record, and upon the Honorable Jeffrey Sherlock, Montana First Judicial District Court.


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