Opinion
DA 22-0251
05-10-2022
STATE OF MONTANA, Plaintiff and Appellee, v. AMIEL JON GARDIPE, JR, Defendant and Appellant.
ORDER
Amiel Jon Gardipe has filed a Petition for an Out-of-Time Appeal of two cases, explaining he failed to file timely notices because he "was unaware that Lake County was out of jurisdiction at the time[.]" Gardipe states he is incarcerated and has no access to a notary. It appears that Gardipe did not serve the Lake County Attorney or the Attorney General with his pleading. We amend the caption to comport with the District Court. M. R. App. P. 2(4).
M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justicef.]"
This Court is familiar with Gardipe's criminal cases, having recently denied his petition for habeas corpus relief. See Gardipe v. Grove, No. OP 22-0180, Order (Mont. Apr. 26, 2022). In that Order, we suggested the remedy of an out-of-time appeal for his claims. On December 22, 2021, the Lake County District Court revoked Gardipe's sentence and committed Gardipe to the Department of Corrections (DOC) for a ten-year term with five years suspended, awarding 300 days for credit for time served (Cause No. DC-20-40). On the same day, the District Court imposed a consecutive, five-year suspended commitment to the DOC for felony to register (Cause No. DC-21-36).
In his Petition, Gardipe seeks to appeal both of his two cases. Procedurally, two cases cannot be appealed in a single proceeding, although two properly filed appeals can later be consolidated by the Court. Section 46-20-104(1), MCA; M. R. App. P. 4(5)(b)(i). Gardipe currently has separate cases, a sentence upon revocation and a new conviction and sentence. He may be entitled to representation of counsel. Section 46-8-104, MCA. Therefore, IT IS ORDERED that:
1. Gardipe's Petition for an Out-of-Time Appeal is GRANTED in Cause No. DA 22-0224, State of Montana v. Amiel Jon Gardipe Jr., for Lake County District Court Case No. DC-20-40;
2. the Clerk of the Supreme Court shall OPEN a separate direct appeal, Cause No. DA 22-0251 and FILE a copy of this Order as well as a copy of Gardipe's Petition for an Out-of-Time Appeal;
3. Gardipe's Petition for Out-of-Time Appeal is GRANTED in that matter, Cause No. DA 22-0251, State of Montana v. Amiel Jon Gardipe Jr., for Lake County District Court Case No. DC-21-36; and
4. the Appellate Defender Division is APPOINTED to represent Amiel Jon Gardipe in both of these appeals. The Appellate Defender Division shall have thirty days from the date of this Order within which either to file a Notice of Appeal or a Motion to Rescind this Order Appointing Counsel. If Gardipe qualifies for appointed counsel, the Appellate Defender Division shall immediately order the appropriate transcripts.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Appellate Defender Division; Austin Knudsen, Attorney General, along with a copy of Gardipe's Petition; Steven Eschenbacher, Lake County Attorney, along with a copy of Gardipe's Petition; and Amiel Jon Gardipe Jr.