State v. Z. Smith ( 2022 )

CaIGINAL 05/17/2022 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0243 DA 22-0243 L STATE OF MONTANA, MAY 1 7 2022 Bovveo G r r-lvvoncl Plaintiff and Appellee, Clerk of Supreme State of Montena Cour, v. ORDER ZECHARIAH JUSTIN DANIEL SMITH, Defendant and Appellant. Appellate Defender Chad Wright has asked this Court to permit an out-of-time appeal for Appellant Zechariah Justin Daniel Smith from the Order entered January 3, 2022, by the Fourth Judicial District Court, Missoula County, in Cause No. DC-21-229. The Attorney General's Office does not object to this petition. Wright asserts that the District Court granted Smith's request to represent himself in the underlying matter at sentencing, and Smith further waived the assistance of standby counsel. At the conclusion of the sentencing hearing, the court orally granted Smith's request to appoint an attorney to review or appeal his sentence, but the court did not issue a written order re-appointing counsel. As a result, the matter was not referred to the Appellate Defender Division (ADD). However, following a hearing on May 3, 2022, the District Court reiterated its ruling and issued a written order for ADD to appoint counsel. Since this appeal is untimely under M. R. App. P. 4(5), Smith moves this Court for leave to pursue an out-of-time appeal. 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 ofjustice." Wright argues that such would occur here if Smith were denied the right to appeal based on matters outside his control regarding the issuance of a written order that memorialized the District Court's oral order appointing counsel. We agree. IT IS THEREFORE ORDERED that the petition for an out-of-time appeal is GRANTED. IT IS FURTHER ORDERED that Appellant shall have thirty days from the date of this Order within which to prepare, file, and serve a Notice of Appeal and a Request for Transcripts 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 —9- day of May, 2022. LA,•:/"..4,4y% 411", Justices