Opinion
OP 21-0198
06-22-2021
DAVID GARY BURTON, Petitioner, v. STATE OF MONTANA, FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY, Respondent.
ORDER
David G. Burton petitions this Court for rehearing of a May 11, 2021 Order denying his Petition for Writ of Mandamus. We explained then that the Lewis and Clark County District Court only received his petition for postconviction relief on February 11, 2021, in Cause No. DV-2021-125 and that no motions had been received or filed. Burton states that this Court has overlooked facts material to this case, pursuant to M. R. App. P. 20(1)(a)(i), and that his motions have been filed in his underlying criminal case, CDC-2012-16. He requests that this Court secure a copy of the register of actions for that case and compel the District Court to respond to his requests for motions.
Burton is not entitled to his requests. If Burton filed his motions in his underlying criminal case, that case most likely is closed. He has a new civil action commenced upon the filing of his petition for postconviction relief. Section 46-21-103, MCA. Burton should have filed his motions in his 2021 civil case in the District Court. We point out that, upon review of a more recent register of actions for DV-2021-125, the District Court issued an order for a response to Burton's petition for postconviction relief This Court cannot act on his requests. Section 46-21-101(1), MCA.
Burton is not entitled to rehearing. M. R. App. P. 20(1)(d). Therefore, IT IS ORDERED that Burton's Petition for Rehearing is DENIED.
The Clerk is directed to provide a copy of this Order to the Honorable Kathy Seeley, First Judicial District Court; to Angie Sparks, Clerk of District Court, Lewis and Clark County, under Cause No. DV-2021-125; to counsel of record; and to David G. Burton.