Mccann v. State ( 2022 )

ORIGINAL 09/27/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 22-0506
OP 22-0506
ANTONIO S. MCCANN,
SEP 2 7 2022
Bowen Greenwood
Petitioner, Clerk of Supreme Court
State of IViontana
v.
ORDER
BRIAN GOOTKIN, DIRECTOR, and
JIM SALMONSEN, WARDEN,
Respondents.
Antonio S. McCann has filed a Petition for Writ of Mandamus, or alternatively, a
Writ of Prohibition, requesting a writ against the Director of the Department of Corrections
(DOC) and the Warden of the Montana State Prison (MSP) after a decision from the
Sentence Review Division (Division). He includes a copy of the decision.
A writ of mandamus, or mandate, is provided by statute. Sections 27-26-101
through 27-26-403, MCA. To state a claim for mandamus, a party must show entitlement
to the performance of a clear legal duty by the party against whom the writ is directed and
the absence of a plain, speedy, and adequate remedy at law. Section 27-26-102, MCA;
Smith v. Missoula Co., 1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834.
McCann argues the DOC and MSP have a clear legal duty to release him and follow
the Division's decision. McCann contends that he is being held "without any active
sentence" because the DOC and MSP have not acted on his decreased sentence as stated in
the Division's August 9, 2022 decision. He asserts that the DOC and MSP have refused
"to honor this Honorable Court's Order."
McCann is mistaken. The DOC and MSP may only release him after receipt of a
revised sentencing judgment. After the Division issues a decision that orders a different
sentence, "the court sitting in any convenient county shall resentence the person as ordered
by the review division." Section 46-18-904(3), MCA. Furthermore, according to available
electronic records, McCann was released to probation on September 21, 2022.
McCann has not demonstrated a clear legal duty, pursuant to § 27-26-102, MCA,
for such a writ to issue. Therefore,
IT IS ORDERED that McCann's Petition for Writ of Mandamus, or alternatively, a
writ of prohibition, is DENIED and DISMISSED.
DATED this Ci• day of September, 2022.
Chief Justice
LA6/2
Justices
2