Opinion
OP 22-0506
09-27-2022
ANTONIO S. MCCANN, Petitioner, v. BRIAN GOOTKIN, DIRECTOR, and JIM SALMONSEN, WARDEN, Respondents.
ORDER
Antonio S. McCann has filed a Petition for Writ of Mandamus, or alternatively, a Writ of Prohibition, requesting a writ against the Director of the Department of Corrections (DOC) and the Warden of the Montana State Prison (MSP) after a decision from the Sentence Review Division (Division). He includes a copy of the decision.
A writ of mandamus, or mandate, is provided by statute. Sections 27-26-101 through 27-26-403, MCA. To state a claim for mandamus, a party must show entitlement to the performance of a clear legal duty by the party against whom the writ is directed and the absence of a plain, speedy, and adequate remedy at law. Section 27-26-102, MCA; Smith v. Missoula Co., 1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834.
McCann argues the DOC and MSP have a clear legal duty to release him and follow the Division's decision. McCann contends that he is being held "without any active sentence" because the DOC and MSP have not acted on his decreased sentence as stated in the Division's August 9, 2022 decision. He asserts that the DOC and MSP have refused "to honor this Honorable Court's Order."
McCann is mistaken. The DOC and MSP may only release him after receipt of a revised sentencing judgment. After the Division issues a decision that orders a different sentence, "the court sitting in any convenient county shall resentence the person as ordered by the review division." Section 46-18-904(3), MCA. Furthermore, according to available electronic records, McCann was released to probation on September 21, 2022.
McCann has not demonstrated a clear legal duty, pursuant to § 27-26-102, MCA, for such a writ to issue. Therefore, IT IS ORDERED that McCann's Petition for Writ of Mandamus, or alternatively, a writ of prohibition, is DENIED and DISMISSED.