Richard Earl Burkhart was convicted of deliberate homicide
under the felony-murder rule in 2002, and was sentenced to
life imprisonment. See State v. Burkhart,
2004 MT 372, 325 Mont. 27, 103 P.3d 1037. In October 2006,
while imprisoned at Montana State Prison, Burkhart and
several other inmates participated in a prison riot. On
November 27, 2007, in Powell County Cause No. DC-07-13L
Burkhart was charged with multiple offense related to the
riot. Pursuant to plea negotiations, Burkhart pled guilty to
riot and criminal mischief On September 16, 2008, Burkhart
was sentenced in that action to ten- and five-year concurrent
prison terms, to be served consecutively to his life
sentence. Then, in November 2016, the Cascade County District
Court vacated Burkhart's 2002 homicide conviction based
on a violation of Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194 (1963).
thereafter, in December 2016, Burkhart filed a motion to
amend the judgment in his 2008 criminal mischief and riot
convictions or, in the alternative, a petition for writ of
habeas corpus on grounds that the 2016 vacatur of his
homicide conviction rendered his 2008 convictions subject to
amendment or, alternatively, created an illegal detention.
Burkhart argued he was entitled to receive credit for time
served from October 27, 2006-the date of the acts resulting
in the criminal mischief and riot charges-or, alternatively,
from the date he was charged with criminal mischief and riot.
The District Court denied Burkhart's motion and petition.
It stated Burkhart's 2008 sentence would be discharged on
September 14, 2018-apparently giving him credit for time
served since his 2008 sentencing.
twenty days remaining before the deadline to appeal the
District Court's decision, Burkhart filed the present
petition in this Court. He asks this Court to exercise
supervisory control over the Third Judicial District Court in
his criminal mischief and riot convictions or, alternatively,
to grant him a writ of certiorari. Specifically, Burkhart
asks us to reverse the District Court's implicit ruling
that he is not entitled to credit for time he served after
the commission of the criminal mischief/riot offenses but
before he was sentenced for those offenses. Additionally,
Burkhart asks us to hold that, when a defendant incarcerated
under an unrelated conviction is convicted of an offense
during that incarceration and the unrelated conviction is
later overturned, he or she is entitled to credit for time
served starting on the day of the conduct constituting the
State of Montana has filed a response objecting to
Burkhart's petition. The State asserts that, because
Burkhart had twenty days remaining on his time to appeal the
District Court's denial of his motion to amend/for writ
of habeas corpus when he filed his petition with this Court,
neither supervisory control nor certiorari is available to
him. It asks us to convert the petition to one for a writ of
habeas corpus. The State maintains that Burkhart's
criminal mischief/riot sentence did not begin to run until
his deliberate homicide conviction was overturned. Therefore,
it asks us to clarify that Burkhart's criminal
mischief/riot sentences started running on November 29,
2016-the date he was no longer serving time on his homicide
of certiorari may properly issue only if the lower court
lacked jurisdiction or exceeded its jurisdiction, there is no
right to appeal from the disputed order, and there is no
other plain, speedy, and adequate remedy. Valley Unit
Corp. v. City of Bozeman, 232 Mont. 52, 54, 754 P.2d
822, 823 (1988). Supervisory control also is an extraordinary
remedy, and is only justified if urgency or emergency factors
make the normal appeal process inadequate, the case involves
purely legal questions, and the other court is proceeding
under a mistake of law and is causing a gross injustice or
constitutional issues of state-wide importance are involved.
M. R. App. P. 14(3).
agree with the State that this matter is appropriate for
neither supervisory control nor certiorari because, at the
time Burkhart filed his petition with this Court, he had a
remedy of appeal from the denial of his motion to amend. He
chose not to pursue that remedy.
stated above, Burkhart alternatively asked the District Court
for a writ of habeas corpus. He had no right to appeal from
the denial of his request for a writ of habeas corpus.
See Thomas v. Doe, 2011 MT 283, ¶ 3, 362 Mont.
454, 266 P.3d 1255. However, he retained the right to file an
original petition for writ of habeas corpus with this Court
under § 46-22-101(1), MCA. The State suggests we
consider Burkhart's petition to this Court as a request
for a writ of habeas corpus.
Burkhart points out, however, the doctrine of res judicata
may bar relitigation of issues in multiple petitions for writ
of habeas corpus. Res judicata applies if three criteria are
met: (1) the ground presented in the subsequent application
was determined adversely to the applicant on the prior
application; (2) the prior determination was on the merits;
and (3) the ends of justice would not be served by reaching
the merits of the subsequent application. Montgomery v.
State, 2016 MT 169, ¶ 12, 384 Mont. 120, 375 P.3d
403, citing Kills on Top v. Slate, 279 Mont. 384,
399, 928 P.2d 182, 192 (1996). Here, Burkhart presents the
same arguments he raised in his request to the District Court
for a writ of habeas corpus. However, under the procedural
history presented here, and in a case involving an issue of
first impression in this State, we conclude the ends of
justice will be served by reaching the merits of what we now
deem to be Burkhart s application for a writ of habeas
reply brief filed with this Court, Burkhart points to
authority from eight other states and three federal circuit
courts of appeal which have held that a person is entitled to
time served from the date of the imposition of the sentence
set to run consecutively to a sentence that has since been
invalidated. The District Court followed that rule.
arguing that he is entitled to credit for the time he served
between the commission of the criminal mischief and rioting
offenses and the date on which he was sentenced for those
offenses, Burkhart relies on § 46-18-403(1), MCA. That
statute states that a person incarcerated on a bailable
offense and against whom a judgment of imprisonment is
rendered must be granted credit for incarceration "prior
to or after conviction." In response, the State cites
our interpretation of that statute that "[a] defendant
is not entitled to receive credit for preconviction time
served on an offense if he is not incarcerated for that
particular offense." State v. Henderson, 2008
MT 230, ¶ 9, 344 Mont. 371, 188 P.3d 1011.
first held that § 46-18-403(1), MCA, entitles a
defendant to credit for time he or she was incarcerated only
if that incarceration was directly related to the offense for
which the sentence is imposed in State v, Kime, 2002
MT 38, ¶ 16, 308 Mont. 341, 43 P.3d 290, overruled
on other grounds, State v. Herman, 2008 MT 187, 343
Mont. 494, 188 P.3d 978. Burkhart points out that his case
can be distinguished from Kime and the cases that
apply Kime-including Henderson-because, in
Burkhart's case, the prior felony conviction was vacated.
We find Kime instructive, however, as to the
interpretation of § 46-18-403(1), MCA, because up until
Burkhart's homicide conviction was vacated, his sentence
on that conviction was still a legal sentence. We conclude
that the statute does not entitle Burkhart to receive credit
for time served prior to the entry of judgment against him
for his criminal mischief/riot convictions.
the procedural posture of this case, we decline to adopt the
State's argument that the District Court's decision
should be "clarified" in that Burkhart should not
receive credit for time he served between his conviction on
the criminal mischief/riot conviction and the vacating of his
deliberate homicide conviction.
IT IS ORDERED that the Burkhart's petition, which we deem
a petition for writ of habeas ...