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Stewart v. State

Supreme Court of Montana

June 17, 2014

BENNY STEWART, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

ORDER

Self-represented Appellant Benny Stewart has filed a motion for appointment of counsel. Stewart is appealing from the Silver Bow County District Court's order denying his petition for postconviction relief. As grounds for his motion, he asserts that he is financially unable to afford an attorney for his appeal. He also filed a motion to proceed without paying filing fee, which the Clerk has granted.

If financially unable to retain private counsel, a person charged with a felony or a misdemeanor for which a sentence of incarceration may be imposed is entitled to the appointment of counsel pursuant to § 46-8-101(2), MCA. The defendant is entitled to the representation of counsel through entry of the final judgment and an appeal. Section 46-8-103(1), MCA. However, appointment of counsel at state expense is not a matter of right in post-conviction proceedings, which are civil in nature, although a court may order the assignment of counsel under the limited circumstances outlined in § 46-8-104, MCA.

Stewart represented himself in the District Court. Upon review of his motion, we conclude that Stewart does not present the "extraordinary circumstances" described in § 46-8-104, MCA, in order to justify the appointment of counsel. Therefore,

IT IS HEREBY ORDERED that Stewart's motion for the appointment of counsel is DENIED. The Clerk shall provide Mr. Stewart with a copy of this Court's Civil Appellate Handbook for reference in preparing his appeal.

The Clerk is directed to provide a copy of this order to counsel of record and to Benny Stewart personally.


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