J. Rodriguez v. Salmonsen ( 2023 )

02/08/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 22-0692
OP 22-0692 FLIP F-7 0
FEB 0 7 2223
JUAN ANASTASIO RODRIGUEZ, Bowen Cr u“nwood
Ckirk of Supreme Court
State of Montana
Petitioner,
v.
ORDER
JAMES SALMONSEN, Warden,
Montana State Prison,
Respondent.
Juan Anastasio Rodriguez petitions this Court for rehearing of a December 20, 2022
Order where we denied and dismissed his petition for habeas corpus relief because he was
time-barred and procedurally barred to raise his issues.
Rodriguez contends that this Court overlooked a fact material to the decision,
pursuant to M. R. App. P. 20(1)(a)(i) and (ii). He argues that he has an illegal sentence,
referencing Lott v. State, 2006 MT 279, 334 Mont. 270, 150 P.3d 337. Rodriguez puts
forth that he was challenging his six-year deferred imposition of sentence and the
restitution imposed in October 2010.
This Court did not overlook any material facts. This Court stated that Rodriguez
did not appeal his six-year deferred sentence, imposed in 2010, and that the sentence was
replaced with a sentence of revocation in April 2015. Rodriguez cannot challenge a
sentence that does not exist, and he provides no legal authority to surmount that barrier.
We explained previously:
Rodriguez brings his claims too late to this Court and through the wrong
remedy of habeas corpus. Any challenge to the court's imposition of
restitution should have been raised in a direct appeal. Any claim about
ineffective assistance of trial counsel should have been raised in a timely
petition for postconviction relief in the sentencing court.
Rodriguez v. Salmonsen, No. OP 22-0692, Order, at 2 (Mont. Dec. 20, 2022). Rodriguez
is precluded from arguing these claims now.
Rodriguez is not entitled to rehearing. M. R. App. P. 20(1)(d). Therefore,
IT IS ORDERED that Rodriguez's Petition for Rehearing is DENIED and
DISMISSED.
The Clerk ofthe Suprerne Court is directed to provide a copy of this Order to counsel
of record and to Juan Anastasio Rodriguez.
DATED this fe kt lay of January, 2023.
Chief Justice
LA w:/i to,o
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