Wier v. Lincoln County Sheriff S De ( 1996 )

No. 96-491
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
MARK TURNER WIER,
Defendant and Petitioner,
v.
LINCOLN COUNTY SHERIFF'S DEPARTMENT,
and DISTRICT COURT OF THE NINETEENTH
JUDICIAL DISTRICT OF THE STATE OF
MONTANA, IN AND FOR THE COUNTY OF
LINCOLN, THE HONORABLE JUDGE MICHAEL
C. PREZEAU, Presiding,
Respondents.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln
The Honorable Michael C. Prezeau, Judge presiding
COUNSEL OF RECORD:
For Petitioner:
James B. Wheelis, Public Defender's Office, Libby,
Montana
For Respondents:
Joseph P. Mazurek, Attorney General, Elizabeth L.
Griffing, Assistant Attorney General, Helena,
Montana; S. Charles Sprinkle, Lincoln county
Attorney, Libby, Montana
Submitted: August 19, 1996
Decided: October 23, 1996
Justice James C. Nelson delivered the Opinion of the Court
Mark Turner Wier (Wier) filed herein a Petition for Writ of
Habeas Corpus for a Stay of Execution of Sentence and for the
Setting of a Bond to Bxure Appearance and Memorandum of
Authorities pursuant to Title 46, Chapter 22, Montana Code
Annotated.
Procedural Background
On May 1, 1996, Wier was charged with partner assault, a
misdemeanor, in violation of § 45-5-206, MCA, and carrying a
concealed weapon while under the influence, a misdemeanor, in
violation of § 45-8-327. Wier posted a $2,000 bond and was
released pending trial. On July 19, 1996, trial was held in
Justice Court in Lincoln County. Wier did not appear and he was
found guilty in absentia. Sentencing was scheduled for August 15,
1996. There is no record of the sentencing other than a Commitment
Order signed by the Justice of the Peace on August 15, 1996,
wherein Wier was sentenced to five days in jail commencing August
15, 1996, at 3 p.m. and ending August 20, 1996, at 3 p.m.
Wier appealed to the Nineteenth Judicial District Court,
Lincoln County, on August 15, 1996, and requested a stay of
execution pending his appeal. The Justice of the Peace refused to
stay execution of Wier's sentence. On August 16, 1996, the
District Court also denied Wier's motion to stay execution of
sentence. There is no record of any proceeding held on this
motion. Wier filed a Petition for Writ of Habeas Corpus with this
Court on August 16, 1996, seeking his immediate release from
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custody. The justice reviewing the petition declined to act in the
absence of the full Court.
On August 20, 1996, this Court issued an Order staying the
remainder of the sentence. The Court further ordered that the
Attorney General file a response to the petition addressing the
merits of Wier's argument in addition to any procedural matters.
Wier was released from custody at 9:46 a.m. on August 20, 1996, by
order of the Justice of the Peace.
Discussion
Wier argues that his ,incarceration was unlawful because an
"appeal from a judgment from justice court abrogates that judgment"
and because an "appeal to district court renders incarceration
under a justice court's order illegal." The State contends that
since Wier is no longer in custody, his claim for relief is moot
and this Court should not address the substantive questions in this
case.
While a petition for writ of habeas corpus is moot once the
defendant is no longer in custody, State v. Sor-Lokken (19911, 247
Mont. 343, 351, 805 P.2d 1367, 1373, the issue here is one that is
"capable of repetition, yet evading review." See Weinstein v.
Bradford (1975), 423 U.S. 147, 96 S.Ct, 347, 46 L. Ed. 2d 350. This
Court has previously stated:
When faced with constitutional questions which are
capable of repetition yet could avoid review, this Court
will consider the merits of the issues raised on appeal.
Romero v. J 6c J Tire (19891, 238 Mont. 146, 148, 777 P.2d
292, 294; Butte-Silver Bow Local Gov't v. Olsen (19871,
228 Mont. 77, 82, 743 P.2d 564, 567. As we stated in
Butte-Silver Bow:
[tlhe exception to mootness for those actions that
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are capable of repetition, Yet evading review,
usually is applied to situations involving
governmental action where it is feared that the
challenged action will be repeated.
Butte Silver Bow, 743 P.2d at 567.
Common Cause v. Statutory Committee (1994), 263 Mont. 324, 328, 868
P.2d 604, 606-7. The constitutional issue implicated here is
Wier's right to a reasonable bail. U.S. Const. Amend. VIII; Art.
II, Sec. 22, Mont. Const.
Hence we accept jurisdiction to review the substantive issues
raised in this case by writ of supervisory control. We are
empowered to do so by Article VII, Section 2(l) of the Montana
Constitution, granting this Court "original jurisdiction to issue,
hear, and determine writs of habeas corpus and such other writs as
may be provided by law," and by Article VII, Section Z(2) of the
Montana Constitution, granting this Court "general supervisory
control over all other courts." State ex rel. Marlenee v. Dist.
court, Etc. (1979), 181 Mont. 59, 62, 592 P.2d 153, 154
Release or detention pending appeal of a justice court
decision is governed by § 46-g-107, MCA, which provides:
A person intending to appeal from a judgment imposing a
fine only or from any judgment rendered by a justice's
court or city court must be admitted to bail. The court
shall order the detention of a defendant found guilty of
an offense who is awaiting imposition or execution of
sentence or a revocation hearing or who has filed an
appeal unless the court finds that, if released, the
defendant is not likely to flee or pose a danger to the
safety of any person or the community. [Emphasis
added.1
Under the plain language of this statute, Wier had a right to
be admitted to bail pending his appeal unless the court found that
he was likely to flee or that he posed a danger to the safety of
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any person or to the community. Neither the Justice Court, nor the
District Court made any such finding in this case.
In State ex rel. Abbitt v. Just. Ct. of Lake Cty. (1986), 220
Mont. 210, 213, 714 P.2d 140, 142, we noted that a person who has
appealed from a justice court order is not necessarily entitled to
release, but must go through the bail procedures. Thus, wier must
qualify for bail and the amount of his bail must be determined in
accordance with § 46-g-301, MCA. Once admitted to bail, Wier's
sentence should then be stayed by the trial court pending his
appeal, pursuant to § 46-20-204, MCA.
The State contends that Wier did not attempt to be admitted to
bail, but only attempted to stay the execution of his sentence.
However, there was no opportunity for a bail hearing in this matter
as both the Justice of the Peace and the District Court Judge were
unavailable. Wier had previously posted a $2,000 bond in the
Justice Court proceeding to secure his release pending trial. The
Justice Court still retained this bond at the time of Wier's
appeal.
Accordingly, we hold that the Justice Court erred in failing
to stay the imposition of Wier's sentence pending his appeal to
District Court.