State v. Davis

362 P.2d 1013 | Mont. | 1961

MR. CHIEF JUSTICE JAMES T. HARRISON

delivered the Opinion of the Court.

Gerald F. Davis, an inmate of the state prison, has filed herein a petition requesting this Court to order the District Court of Gallatin County to furnish him with a copy of the transcript of the evidence on the ground that he has no funds with which to secure the same.

The files of this Court disclose that judgment was pronounced and entered on October 31, 1960, sentencing petitioner to the state prison following his conviction by a jury.

On December 14, 1960, petitioner directed a notice of intention to appeal to the Clerk of the District Court, wherein it was stated that petitioner declined the services of his court-appointed attorney and he no longer wished to be represented by such attorney in his appeal. Petitioner likewise stated in this notice that he would take a pauper’s oath and petition the Court to provide him with a copy of the transcript. He also forwarded a like notice of intention to the Clerk of this Court who immediately wrote petitioner advising him to consult counsel if he desired to make his appeal effective. In his notice filed here he also stated he would petition this Court to order the District Court to provide him with a copy of the transcript.

On December 22, 1960, the District Court set the matter for hearing on January 16, 1961, and notice of such hearing was given to petitioner by mail. No appearance on behalf of petitioner was made at the time fixed for the hearing and the State of Montana moved to quash the purported Notice of Intention to Appeal upon the grounds that the Court did not have jurisdiction of the matter or the parties, and that proper service had not been had. The District Court granted the motion and quashed the purported notice of intention to appeal and allied notices, copy of which order was transmitted to the petitioner.

On February 12, 1961, petitioner wrote the Clerk of this Court enclosing copy of a Notice of Appeal which was dated January 23, 1961, and which he stated had also been filed in the District Court on January 31, 1961.

Petitioner declined the services of his court-appointed attorney and secured no other counsel. The appellate procedure provided by our law is rather complicated to be undertaken by one unskilled in the law, but petitioner chose to proceed in that fashion and so notified the District Court.

Proper showing must be made to the District Court that a defendant in a criminal case is unable to pay for a transcript so as to secure an order that it be furnished him and paid for by the County. See section 93-1904, R.C.M.1947.

There is no showing here that any such application was made to the District Court and therefore no ground exists for issuance of the writ requested.

The petition is denied and the proceeding dismissed.

MR. JUSTICES ANGSTMAN, CASTLES and JOHN C. HARRISON concur.