State v. M. Gossard ( 2020 )

08/24/2020 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 19-0365 No. DA 19-0365 STATE OF MONTANA, Plaintiff and Appellee, v. MONTE BLAIN GOSSARD, Defendant and Appellant. ORDER Upon consideration of Appellant’s motion and good cause appearing, Appellant’s Unopposed Motion to Stay Appeal and Allow Appellant’s Trial Counsel to Move the District Court to Establish the Record is GRANTED. IT IS ORDERED that within 15 days from entry of this Order, Defense Counsel Roberta Cross Guns shall prepare, serve, and file with the clerk of the district court a motion for leave to prepare a statement of the unavailable evidence from the best available means, including the party’s recollection of the September 17, 2018, in-chambers conference. Counsel for the State shall have 15 days to respond in writing. If the district court grants the motion to recreate the record, defense counsel must, within 20 days of the district court’s order, prepare, serve, and file with the clerk of the district court a statement of the unavailable evidence from the best available means, including the party’s recollection. This statement must specify the source or sources of the party’s statements of evidence and shall be limited to unavailable evidence that is relevant to the issues on appeal. From the date the statement is filed, the State shall have 15 days to respond in writing. The district court shall examine the statement of unavailable evidence and any response and may hold a hearing. The district court shall then promptly file with the clerk of the district court an order adopting or rejecting, in whole or in part, the statement of unavailable evidence of the September 17, 2018 conference such that any statement adopted by the district court most accurately reflects the unavailable evidence. The parties shall have 15 days from the date of filing of the district court’s order to file written objections with the clerk of the district court with contemporaneous service on the opposing party. The district court’s order shall then constitute the record on appeal as to the September 17, 2018 conference. Any properly ORDER preserved objection to the district court’s order or to these proceedings under Mont. R. App. Pro. 8(7) may be raised in an amended notice of appeal or cross-appeal filed and served within 15 days of the transmission of the district court’s order and associated documents by the clerk of the district court to the Clerk of this Court. IT IS FURTHER ORDERED that the briefing schedule in this appeal is STAYED. Appellant’s opening brief on appeal shall be due 30 days after the Clerk of this Court receives either the district court’s order denying the motion to recreate the record of the September 17, 2018 conference or the district court’s order adopting a statement of that conference. The Clerk shall serve a copy of this Order upon the Toole County Clerk of District Court. Electronically signed by: Mike McGrath ORDER Chief Justice, Montana Supreme Court August 24 2020