Opinion
DA 21-0527
01-04-2022
STATE OF MONTANA, Plaintiff and Appellee, v. ROBIN R. COLLINS, Defendant and Appellant.
ORDER
Appellant Robin R. Collins, via counsel, has moved to stay this appeal and to remand the case to the Sixth Judicial District Court, Park County, for the purpose of allowing that court to rule on Collins's pending Motion for Resentencing or Rescission of Plea. Collins indicates that the State opposes the motion, but the State did not respond.
Collins explains that, pursuant to a plea agreement, he pleaded guilty to one count of felony criminal endangerment and no contest to one count of felony criminal endangerment. The District Court conducted a sentencing hearing on August 20, 2021, and entered judgment on August 24, 2021.
On October 19, 2021, Collins moved the District Court for resentencing or to rescind the plea. On October 20, 2021, he filed his Notice of Appeal in this Court. Collins points out that a motion to withdraw a plea does not toll the deadline for filing a direct appeal. Peterson v. State, 2017 MT 164, ¶ 11, 388 Mont. 122, 398 P.3d 259. To ensure his appeal was timely, he did not wait to appeal until the District Court ruled on his Motion for Resentencing or Rescission of Plea. Collins asserts that a favorable ruling from the District Court may well moot his appeal and asks for a stay to allow that court to rule on his motion.
Collins is correct that the District Court lost jurisdiction to rule on the motion when Collins filed his Notice of Appeal. State v. Arlington, 265 Mont. 127, 166, 875 P.2d 307, 330 (1994). The State having presented no objection, and good causing appearing, IT IS ORDERED that this case is REMANDED to the District Court to allow the court to rule on Appellant's Motion for Resentencing or Rescission of Plea.
IT IS FURTHER ORDERED that this appeal is STAYED pending the District Court's ruling on Appellant's Motion for Resentencing or Rescission of Plea.
IT IS FURTHER ORDERED that Appellant shall notify this Court of the District Court's ruling on the motion within ten days of the District Court's order, at which time this stay shall be VACATED without further order of this Court as of the date of the District Court's order.
The Clerk is directed to provide copies of this order to all counsel of record and to the Sixth Judicial District Court, Park County, Hon. Brenda R. Gilbert, presiding.