State v. C. Irvine ( 2023 )

ORIGINAL 06/20/2023 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0330 DA 23-0330 STATE OF MONTANA, JUN 2 0 2023 Bowen ,.nwooa Clerk of St.!_ , ,arne Court State of Montana Plaintiff and Appellee, v. ORDER CHRISTOPHER JAMES IRVINE, Defendant and Appellant. Chad Wright, Appellate Defender, petitions for an out-of-time appeal for Christopher James Irvine from the order entered on March 24, 2023, by the Twentieth Judicial District Court, Lake County, in Cause No. DC-19-99. The Attorney General's Office does not object to this motion. Wright asserts that Irvine's trial attorney left employment at the Office of Public Defender (OPD) immediately after the judgment was issued in this case. Irvine contacted OPD on multiple occasions and indicated his desire to appeal the case, but OPD did not timely refer the matter to the Appellate Defender Division (ADD) and thus a Notice of Appeal was not timely filed. Wright asserts that it would be unjust to deny Irvine the right to appeal when the untimeliness of the Notice of Appeal was caused by an error or oversight out of Irvine's control. We grant out-of-time appeals under M. R. App. P. 4(6) when an appellant establishes the existence of "extraordinary circumstances amounting to a gross miscarriage of justice," which would exist if we were to deny the petition here. IT IS THEREFORE ORDERED that the petition for an out-of-time appeal is GRANTED. IT IS FURTHER ORDERED that the Office of Appellate Defender shall have 30 days from the date of this Order within which to prepare, file, and serve a Notice of Appeal and a Request for Transcripts, if necessary, in compliance with the Montana Rules of Appellate Procedure. The Clerk is directed to provide copies of this Order to all counsel of record. DATED this t.6 day of June, 2023. Chief Justice e94, " "-,r,.....r e /PI 2