Opinion
DA 21-0508
01-31-2023
RANDALL KEITH ORTON, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee
ORDER
Randall Keith Orton has filed a motion stating opposition to dismissal of his appeal with prejudice, which this Court has indicated will occur if Orton continues to delay his briefing. The State of Montana has filed a response in opposition to Orton's motion.
On October 26, 2021, this Court granted Orton's petition for out-of-time appeal, reasoning he had demonstrated extraordinary circumstances for an appeal of the Missoula County District Court's Order denying and dismissing his petition for postconviction relief from his felony DUI conviction, entered in March 2021. We have twice denied Orton's associated motions for appointment of counsel on appeal because he is not entitled to such appointment under Montana law. Orton v. State, No. DA 21-0508, Order (Mont. Nov. 30, 2021); § 46-8-104, MCA. However, we have granted Orton numerous extensions of time to file his brief. In its objection to Orton's motion, State points out that, between January 2022, when Orton's brief was originally due, through October 2022, we granted Orton nine extensions of time, and in the ninth extension stated no further extensions would be granted and the appeal would be dismissed with prejudice if Orton "fail[ed] to file his opening brief on or before November 25,2022." Thereafter, we granted two more extensions and warned Orton again about dismissal. His brief was thus due on January 26, 2023, which prompts his current motion.
Orton now requests that his appeal be dismissed without prejudice, and that he be allowed to refile his appeal once he obtains counsel. The State responds that Orton should not be permitted to begin the appellate process anew, because it is not in the interest of justice.
We note that Orton has also since filed another motion for extension of time, his twelfth, and his third motion for appointment of counsel. As both the State and this Court has noted, he represented himself in the District Court when he sought postconviction relief on his DUI conviction. This Court has extended considerable latitude to Orton as a self-represented litigant, and we cannot grant any further relief. See Greenup v. Russell, 2000 MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124. Therefore, IT IS ORDERED that:
1. Orton's Motion in Opposition to Dismissal with Prejudice is DENIED;
2. Orton's Motion for Extension of Time and Motion for Appointment of Counsel are both DENIED;
3. This appeal is DISMISSED WITH PREJUDICE; and
4. The Clerk of the Supreme Court is directed to CLOSE this matter as of this Order's date and to issue remittitur.
The Clerk is also directed to provide a copy of this Order to counsel of record and to Randall Keith Orton personally.