Bretz v. Crist , 178 Mont. 465 ( 1978 )

No. 14209
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1978
L. R. BRETZ,
Petitioner,
-vs-
ROGER C R I S T I WARDEN I
Respondent.
O R I G I N A L PROCEEDING:
C o u n s e l of R e c o r d :
For Pe t i t o n e r :
M o s e s , T o l l i v e r and W r i g h t , B i l l i n g s , M o n t a n a
C h a r l e s F. M o s e s argued, B i l l i n g s , M o n t a n a
For R e s p o n d e n t :
Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
R o b e r t K e l l e r argued, S p e c i a l A s s i s t a n t A t t o r n e y G e n e r a l ,
Submitted: June 8, 1 9 7 8
Decided: JUL 15 j378
F i l e d : ,,!_
.;; _ -
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an original proceeding for a writ of habeas
corpus by an inmate of Montana State Prison. Petitioner seeks
his release from custody on the ground that his conviction is
invalid because he was denied a speedy trial.
Petitioner filed a pro se petition for a writ of habeas
corpus on March 14, 1978. Petitioner is currently serving a 56
year sentence in the State Prison. This sentence was imposed
upon petitioner's conviction of eighteen various criminal counts
in Cascade County on December 13, 1976. Petitioner challenges
the legality of his detention because over 800 days elapsed from
the date the information was filed against him and the date he
was brought to trial. Petitioner argues that this length of
time violated his right to a speedy trial.
Counsel was appointed by this Court to represent petition-
er. Briefs and memoranda were filed, oral argument was heard,
and the matter was submitted to the Court for decision.
We deny the relief requested by petitioner.
Petitioner's conviction is now on appeal to this Court.
That appeal is Supreme Court Cause No. 13826. Petitioner's brief
was filed with this Court on June 8, 1978. (The State has not yet
filed its answering brief in that appeal.) During oral argument,
counsel for petitioner admitted that the issue of a lack of a speedy
trial was being raised in petitioner's appeal from his conviction.
This Court has previously adopted the rule that any error
in a criminal trial, which is reviewable on appeal from the con-
viction, will not be considered in a habeas corpus proceeding.
Bubnash v. State (1961), 139 Mont. 645, 367 P.2d 319. Petitioner,
in his appeal from his conviction, is alleging that his lack of
a speedy trial is reversible error. We will have to decide that
issue when his appeal is submitted to this Court for a decision.
At this time, we cannot decide that issue on a petition for
a writ of habeas corpus.
Petitioner has attempted this procedure in the past and
relief was similarly denied. In 1975, petitioner was convicted
of obtaining money and property by false pretenses and was
imprisoned at the State Prison. While his conviction was on
appeal, petitioner filed a petition for a writ of habeas corpus.
In that petition, he claimed that his conviction was invalid be-
cause it violated the constitutional provision against double
jeopardy. We held that since the double jeopardy issue could be
raised on the appeal from his conviction, petitioner was not
entitled, in the habeas corpus proceeding, to release from im-
prisonment. State ex rel. Bretz and Cline v. Sheriff (1975),
167 Mont. 363, 539 P.2d 1191. We believe that this earlier de-
cision, where like circumstances appeared, is controlling in
regard to petitioner's current request.
"Ordinarily, the writ of habeas corpus will not
be granted when there is an adequate remedy by
writ of error or appeal, or by writ of certiorari.
Accordingly, a petition for habeas corpus cannot
be entertained during the pendency of a direct
appeal from the original proceedings, and both
remedies may not be pursued simultaneously. * * * "
39 C.J.S. Habeas Corpus 813.
The petition for writ of habeas corpus is denied.
Chief Justice
Judge, sitting for Mr. Justice
Daniel J. Shea.