State v. K. Daly ( 2021 )

- 12/14/2021 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0624 DA 21-0624 FILL - STA I E OF MONTANA, DEC 14 2021 Bowan' Greenwood Clerk of Supreme Court State of Montana Plaintiff and Appellee, v. ORDER KENNETH WAYNE DALY, Defendant and Appellant. Appellate Defender Chad Wright has asked this Court to permit an out-of-time appeal for Appellant Kenneth Wayne Daly from the Order entered August 4, 2021, by the Fourth Judicial District Court, Missoula County, in Cause No. DC-17-20. The Attorney General's Office does not object to this petition. Wright asserts that trial counsel attempted to timely refer Daly's case to the Appellate Defender Division but a technical issue with the new case management system for the Office of Public Defender, which have since been resolved, caused ADD not to discover the referral in a timely manner. Since this appeal is untimely under M. R. App. P. 4(5), Daly moves this Court for leave to pursue an out-of-time appeal. We grant out-of-time appeals under M. R. App. P. 4(6) when an appellant establishes the existence of "extraordinary circumstances amounting to a gross miscarriage ofjustice." Wright argues that such would occur here if Daly were denied the right to appeal based on technical difficulties with OPD' s case management software. We agree. Therefore, IT IS ORDERED that the petition for an out-of-time appeal is GRANTED. IT IS FURTHER ORDERED that Appellant shall have thirty days from the date of this ()rder within which to prepare, file, and serve a Notice of Appeal and a Request for Transcripts in compliance with the Montana Rules of Appellate Procedure. The Clerk is dirsEV. to provide copies of this Order to all counsel of record. DATED this l t--1 day of December, 2021. Chief Justice Justices