State v. Erickson ( 2005 )

ORDER

On October 4, 2005, this Court issued an opinion in this case wherein we stated in ¶ 7 that Kelvin Keith Erickson’s, (Erickson), appellate counsel attached to his reply brief a copy of bond revocation documents in Dawson County No. DC-01-055, (DC-01-055), and that such attachment violated Rules 9(a) and 9(f) of the Montana Rules of Appellate Procedure. As part of our holding in the case, we remanded the case for further development of the record to determine whether Erickson’s bond had actually been revoked.

Erickson has now petitioned this Court for rehearing pursuant to Rule 34, M.R.App.P., contending that the Court’s decision “overlooks the fact that it previously accepted into the record the bail revocation documents which it now holds were improperly attached to Mr. Erickson’s Reply Brief.” Erickson points to an order by this Court on January 4, 2005, permitting his motion pursuant to Rule 9(f), M.R.App.P., to supplement the appellate record to include the bond revocation. Erickson contends that our statement in ¶ 7 of the Opinion, that attachment of the bond revocation to his reply brief violated Rules 9(a) and 9(f) of the Montana Rules of Appellate Procedure, was incorrect.

Having reviewed this Court’s Order of January 4, 2005, our statement in ¶ 7 of the Opinion is in error, and we will amend the Opinion to correct this error.

Second, Erickson urges this Court, pursuant to Rule 201, Mont.R.Evid., to take judicial notice that Erickson’s bond was revoked. He argues that such action is proper because, when considering the record including the bond revocation documents, “there can be no dispute that Mr. Erickson’s bail was revoked, and he was incarcerated on Cause No. DC 01-55 on September 18, 2005.”

We do not agree that judicial notice is appropriate in the present case, as this Court’s Order of January 4, 2005, simply allowed the record on appeal to be supplemented and enlarged. No determination has yet been made whether Erickson’s bond was revoked in DC-01-055. As such, the case still must be remanded so that the District Court may make such a determination. Therefore,

IT IS ORDERED that Erickson’s Petition for Rehearing is GRANTED in part and DENIED in part.

IT IS FURTHER ORDERED that our Opinion in this case, State v. Erickson, 2005 MT 244, is withdrawn with an amended Opinion to follow.

IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by mail to all counsel of record, the District Court, the Pacific Reporter and the Montana Reports.

DATED this 1st day of November, 2005.

/S/JOHN WARNER

/S/ PATRICIA O. COTTER

/S/JIM RICE

/S/JAMES C. NELSON

/S/BRIAN MORRIS

[Publisher’s Note: Due to the Withdrawal of this opinion pages 500-508 of this volume are intentionally omitted.]