State v. E. Allen ( 2023 )

TrIT T f V.t.tWiti‘fiL 03/21/2023 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0506 DA 21-0506 FILED STATE OF MONTANA, MAR 2 1 2023 Bowen Greenwood Plaintiff and Appellee, Clerk of Suprerne Court qtAte rtf Montane v. ORDER EDWARD JEFFREY ALLEN, Defendant and Appellant, Defendant and Appellant Edward Jeffrey Allen, via counsel, moves this Court to stay his pending appeal while he seeks a statement of the record from the Thirteenth Judicial District Court, Yellowstone County, pursuant to M. R. App. P. 8(7). Allen represents that his motion is unopposed and the parties further stipulate that neither will object to Allen's untimely filing of this motion as more than 30 days have elapsed since Allen filed his Notice of Appeal. M. R. App. P. 8(7) sets forth the procedure for recreating a portion of the record if it is unavailable. In this case, Allen asserts that no recording was made of the November 5, 2020 pretrial conference and he therefore was unable to obtain the transcript of the proceeding that he requested for his appeal. He further asserts that his counsel's efforts to contact all trial counsel has been unsuccessful and his counsel believes a District Court order will be necessary to create the unavailable record. Although Allen further requests remand, we note that remand is unnecessary as the District Court retains the necessary jurisdiction to resolve this issue under M. R. App. P. 8(7)(g). IT IS ORDERED that this appeal is STAYED pending the filing of the statement of record pursuant to M. R. App. P. 8(7). The Clerk is directed to provide copies of this order to all counsel of record. DATED this Z k day of March, 2023. Chief Justice eS)-i fir JUL 2