Opinion
OP 23-0350
07-11-2023
ANTHONY SCOTT CHARLIE, Petitioner, v. MONTANA FOURTH JUDICIAL DISTRICT COURT, THE HONORABLE JOHN W. LARSON PRESIDING, Respondent.
ORDER
Anthony Scott Charlie petitions this Court for a writ of supervisory control, pursuant to M. R. App. P. 14, because "[t]he other court has granted or denied a motion for substitution of a judge in a criminal case." M. R. App. P. 14(3)(c). This year Charlie has filed three writs of supervisory control concerning the same criminal case with this Court.
Through appellate counsel, Charlie has pending appeal from the District Court concerning a different Municipal Court decision. See State v. A. Charlie, Cause No. DA 23-0211, Notice of Appeal filed Apr. 5, 2023.
Charlie includes attachments with his petition. Charlie represents himself in District Court. He points to a February 13, 2023 minute entry where the District Court denied his oral motion for substitution of judge. Charlie asks many questions about jurisdiction that are more appropriate for appeal and provides a February 14, 2023 Invitation to Assume Jurisdiction, Response and Order Setting Hearing, where Judge Larson assumed jurisdiction of the matter.
Supervisory control is an extraordinary remedy. Besides urgent and emergency factors, a writ of supervisory control must meet at least two other criteria. This writ is sometimes justified when the case involves purely legal questions and urgent or emergency factors make the normal appeal process inadequate. M. R. App. P. 14(3)(a)-(c).
Charlie informed this Court in a prior original proceeding that he was arrested and charged on August 8, 2022, and that he entered not guilty pleas three days later to these misdemeanor charges. "In a criminal action, a motion for substitution by ... the defendant must be filed within 10 calendar days after the defendant's arraignment." Section 3-1804(1)(b), MCA. An arraignment is '"the formal act of calling the defendant into open court to enter a plea answering a charge.'" Collins v. Mont. Eighth Judicial Dist. Ct., 2018 MT 125, ¶ 6, 391 Mont. 378, 418 P.3d 672 (quoting § 46-1-202(2), MCA). "An arraignment 'must be conducted in open court and must consist of reading the charge to the defendant or stating to the defendant the substance of the charge and calling on the defendant to plead to the charge.'" Collins, ¶ 6 (citing § 46-12-201(1), MCA). Charlie was arraigned on August 25, 2022. It is not readily apparent, and Charlie does not provide, whether he filed a motion for substitution, pursuant to § 3-1-804(3), MCA. While Charlie may have been arraigned again on the charges recently, that court action does not re-start the clock for seeking a substitution of judge on an oral motion. See § 3-1-804(4), MCA ("Any motion for substitution of judge that is not timely filed is void."). Moreover, Charlie got his request; Judge Marks invited Judge Larson to assume jurisdiction the next day.
Charlie is not entitled to this extraordinary remedy. He may pursue his claims through an appeal upon a final judgment from the District Court. Charlie retains the remedy of appeal for such preserved issues. Therefore, IT IS ORDERED that Charlie's Petition for Writ of Supervisory Control is DENIED and DISMISSED. IT IS FURTHER ORDERED that this matter is CLOSED as of this Order's date.
The Clerk is directed to provide a copy of this Order to: the Honorable John Larson, Fourth Judicial District Court; Amy McGhee, Clerk of District Court, Missoula County; Caitlin Creighton and Brandon Zeak, Deputy County Attorneys; counsel of record; Chad M. Wright, Appellate Defender Division; and Anthony Scott Charlie personally.