N. Nunes v. State ( 2021 )

UP *
03/02/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 21-0078
OP 21-0078
NEIL L. NUNES,
Petitioner,
v.
STATE OF MONTANA, ORDER
COUNTY OF TETON,and
SHERIFF VERN BURDICK, FILED
CHOUTEAU COUNTY DETENTION CENTER,
MAR 0 2 2021
Respondents. Bovven Greenwood
Clerk of Suprerne Court
State of Montz,
--na
Neil L. Nunes has filed his second Petition for a Writ of Habeas Corpus this year,
again contending that his incarceration is illegal because he has been incarcerated for more
than a year. We recently denied a similar petition filed by Nunes. See Nunes v. State, No.
OP 20-0618, Order denying habeas corpus relief(Mont. Jan. 12, 2021)(Nunes 1). We
amend the caption to include the Sheriffofthe Chouteau County Detention Center(CCDC)
where Nunes is currently housed.
In Nunes I, we explained the factual background of Nunes incarceration:
Nunes states he was cited for misdemeanor partner or family member assault
on December 11,2019, and was directed by the court to have no contact with
his ex-wife. However, he states that he later had contact with her at a gas
station in violation of the no[]contact order and was charged with felony
intimidation on December 12, 2019, having his initial appearance on
December 17, 2019. Following his appearance, Nunes state he was detained
in the CCDC in Fort Benton and has been held there ever since. He states
that he was charged on February 24, 2020, with two counts of witness
tampering. We secured copies of the case register of actions and the most
recent minute entry for Nunes' criminal proceedings in the Teton County
District Court. Nunes also has two other pending felony cases for failure to
register as a violent or sexual offender, for which he has been held since
December 13, 2019. He has been appointed counsel.
Nunes I, at 1. We also noted the December 14, 2020 minute entry reflected that counsel
for Nunes "advised the [c]ourt that a Motion to Dismiss will be filed for lack of speedy
trial due to the trial being continued numerous times." Nunes I, at 2. We concluded that
habeas corpus relief was not appropriate because of the limited information available and
that the intended motion to dismiss for lack of speedy trial "may require factfinding and
analysis" of Nunes' situation, including his multiple charges, by the District Court.
Nunes I, at 2. We served a copy of our order upon Nunes's counsel of record and the
presiding Judge.
Perhaps our reference to limited information in Nunes I has prompted Nunes to file
a second petition with more information. He includes attachments with his Petition
reflecting a pending case has been continued several times. The District Court initially set
a trial for June 22, 2020, and trial has been re-set at least three times, and is presently set
for April 12, 2021. Nunes now states he has been incarcerated for more than 432 days or
"232 days past the threshold of200 days speedy trial and triggering speedy trial analysis."
We secured copies of the District Court's register of actions for his three cases. Despite
the earlier indication, it does not appear a motion to dismiss has yet been filed by Nunes'
counsel. On January 27,2021,the court set a status hearing for March 9.
It remains true that any such motion would require factfinding, as we noted in
Nunes I. The issue ofa speedy trial violation is more appropriate for review on appeal after
the issue is addressed in the trial proceedings, and a record is made. State v. Ariegwe,2007
MT 204,¶¶ 119-155, 338 Mont. 442, 167 P.3d 815. Therefore,
IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DENIED.
The Clerk is directed to provide a copy of this Order to Austin Knudsen, Attorney
General; Lisa Sinton, Clerk of Court, Teton County, under Cause Nos. DC-19-028,
DC-19-031, and DC-20-001; Jen Stutz, Deputy County Attorney; Roberta Cross Guns,
Attorney for Defendant; Sheriff Vern Burdick, and Neil L. Nunes personally.
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DATED this day of March, 2021.
Chief Justice
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Justices
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