Smith v. State

r-v1 mn
ktrs= 6 ,
12/28/2021
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IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0394
DA 21-0394 F;LED
DEC 2 8 2021
JACOB SMITH, Bovve n Greenwood
Clerk of Supreme Court
State of Montana
Petitioner and Appellant,
v. ORDER
STATE OF MONTANA, et al.,
Respondent and Appellee.
Through counsel, Appellees City of Helena and Bryan Fischer ("the City") move
this Court for dismissal of appeal because self-represented Appellant Jacob Smith has not
filed his opening brief within the extended time. The brief was due on November 30, 2021.
The City asserts that this failure warrants dismissal, pursuant to M. R. App. P. 13(3). Smith
responds that he delivered his brief for mailing on October 27, 2021, when he was held at
the Montana State Prison. He states that he has since been moved to CoreCivic (formerly
known as Crossroads Correctional Center) in Shelby and that he only recently obtained
access to a typewriter as well as his legal documents after being initially quarantined for
COVID-19. Smith requests additional time to prepare and file his brief again.
This Court is not inclined to impose a harsh sanction of dismissal here when the
appellant is incarcerated, has been recently re-located, and has filed a response to the
motion to dismiss. "While pro se litigants may be given a certain amount of latitude in
their proceedings, they may not proceed in such a fashion as to abuse the judicial process,
prejudicing the opposing party's interests as well as other litigants' access to the judicial
system." Fed. Land Bank v. Heidema, 224 Mont. 64, 68, 727 P.2d 1336, 1338 (1986).
While Smith's brief is now untimely, the City has not alleged it is prejudiced and we
conclude that the circumstances warrant allowing the appeal to proceed. Therefore,
IT IS ORDERED that the City's Motion to Dismiss is DENIED and that this appeal
rn ay proceed.
IT IS FURTHER ORDERED that Smith is GRANTED until January 28, 2022 to
file his opening brief. Failure to file his opening brief within that time frame will result in
dismissal of this appeal without further notice.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel
of record and to Jacob Smith personally.
DATED this 14/-- t day of December, 2021.
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