State v. J. Howell ( 2023 )

ORIGINAL 04/26/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 22-0082
DA 22-0082
FILED
STATE OF MONTANA,
APR 2 6 2023
Bowen Gruenw000
Clerk of Suprerne Coun
Stata of Montano
Plaintiff and Appellee,
v. ORDER
JOSHUA JAMES HOWELL,
Defendant and Appellant.
Counsel for the Appellant Joshua James Howell filed a motion and brief asking to
be allowed to withdraw from this appeal pursuant to § 46-8-103(2), MCA, and Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967).
Under Anders, "[IN counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
withdraw. That request must, however, be accompanied by a brief referring to anything in
the record that might arguably support the appeal." Anders, 386 U.S. at 744, 87 S. Ct. at
1400. In this instance, counsel asserts that a meritorious argument exists in favor of
amending the written judgment. She asserts that the written judgment erroneously states
that Howell was convicted of a felony when he was convicted of a misdemeanor, and she
requests that this Court remand the matter to the District Court with instructions to amend
the judgment accordingly.
An Anders brief and rnotion to withdraw is not the mechanism by which this Court
can order relief. Counsel must either brief the matter, along with any other issues counsel
believes are not wholly frivolous or move for dismissal and remand so that the State may
either object or join in the motion.
Therefore,
IT IS ORDERED that counsel's motion for leave to withdraw is DENIED.
IT IS FURTHER ORDERED that Appellant's opening brief shall be due within
thirty days of the date of this Order.
The Clerk is directed to provide copies of this Order to all counsel of record and to
Howell personally. ,a_...,
DATED this Z- b day of April, 2023.
For the Court,
Chief Justice
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