Opinion
DA 22-0283
06-07-2022
STATE OF MONTANA, Plaintiff and Appellee, v. AUSTIN ALLEN MILLARD, Defendant and Appellant.
ORDER
Carolyn M. Gibadlo, Appellate Defender, petitions for an out-of-time appeal from the sentence pronounced on April 7, 2021, by the First Judicial District Court, Lewis and Clark County, in Cause No. BDC 2020-521. The Attorney General's Office does not object to this motion.
Defendant and Appellant Austin Allen Millard was sentenced for this conviction, along with separate convictions in Lewis and Clark County Cause Nos. BDC 2020-227 and BDC 2020-524, the same day. Millard wished to appeal all three cases. However, his trial counsel inadvertently only referred BDC 2020-524 to the Appellate Defender Division, which is on appeal under our Case No. DA 21-0325.
Gibadlo asserts that it would be unjust to deny Millard the right to appeal when the untimeliness of his Notice of Appeal was caused by an error or oversight of counsel.
We grant out-of-time appeals under M. R. App. P. 4(6) when an appellant establishes the existence of "extraordinary circumstances amounting to a gross miscarriage of justice," which would exist if we were to deny the petition here.
IT IS THEREFORE ORDERED that the petition for an out-of-time appeal is GRANTED.
IT IS FURTHER ORDERED that the Office of Appellate Defender shall have 30 days from the date of this Order within which to prepare, file, and serve a Notice of Appeal and a Request for Transcripts, if necessary, in compliance with the Montana Rules of Appellate Procedure.
The Clerk is directed to provide copies of this Order to all counsel of record.