D. Burton v. State ( 2021 )

ORVAL 05/11/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0198
OP 21-0198
DAVID GARY BURTON,
Fr2:-0
MAY 1 1 2021
Petitioner, Bowen Uruunwood
Clerk of Suprerne Court
State of Montana
v.
ORDER
STATE OF MONTANA,FIRST JUDICIAL
DISTRICT COURT,LEWIS AND CLARK
COUNTY,
Respondent.
Representing himself, David G. Burton has filed a Writ of Mandamus, pursuant to
§ 27-26-102, MCA, and has included an affidavit in support, pursuant to
§ 27-26-201, MCA. He requests that this Court issue such writ over the First Judicial
District Court, Lewis and Clark County, because the District Court has not acted on his
motions. Burton explains that he has moved the District Court twice for transcripts and
most recently to compel in his underlying proceeding where he petitioned the court for
postconviction relief. Section 46-21-105, MCA. He points out that nine months have
elapsed and that the District Court "has not issue[d] any orders regarding the MOTIONS
OR Petitioner's PCR." (Emphasis in original).
To state a claim for mandamus, a party must show entitlement to the performance
of a clear legal duty by the party against whom the writ is directed and the absence of a
plain, speedy, and adequate remedy at law. Section 27-26-102, MCA; Smith v.
Missoula Co., 1999 MT 330,1 28,297 Mont. 368,992 P.2d 834. This type of proceeding,
such as a writ of mandate, must be commenced in accordance with Montana's statutes.
M.R. App. P. 14(2).
Burton has not demonstrated a clear legal duty for the District Court to act.
Section 27-26-102, MCA; Smith, ¶ 28. No exact time frames exist for when a
District Court should rule upon a petition. Pursuant to § 46-21-103, MCA,after docketing
the petition, the clerk shall "bring the petition promptly to the attention ofthe court." We
point out that Burton commenced his proceeding in February 2021 in the District Court.
Burton pursues discretionary relief and not of a legal nature.
We secured a copy of the District Court's register of actions. This docket reflects
only the filing ofthe petition. The District Court never received Burton's motions for filing
in his postconviction proceeding.
Burton's request for a writ of mandate is not appropriate here. He has not
demonstrated that he is entitled to the performance of a clear legal duty in his request for
resolution of his petition for postconviction relief or his unfiled motions.
Section 27-26-102, MCA;Smith, ¶ 28. Accordingly,
IT IS ORDERED that Burton's Petition for a Writ of Mandamus is DENIED and
DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to the
Honorable Mike Menahan, First Judicial District Court; to Angie Sparks, Clerk of District
Court, Lewis and Clark County, under Cause No. DV-2021-125; to counsel ofrecord; and
to David G. Burton personally.
DATED this 11 day of May,2021.
Chief Justice
-
JUL
Justices
2