Opinion
DA 21-0623
05-25-2023
STATE OF MONTANA, Plaintiff and Appellee, v. BRANDON JEROME LAMBRIGHT, Defendant and Appellant.
ORDER
Counsel for the Appellant Brandon Jerome Lambright filed a motion and brief asking to be allowed to withdraw from this appeal pursuant to § 46-8-103(2), MCA, and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
Under Anders, "[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Anders, 386 U.S. at 744, 87 S.Ct. at 1400. In this instance, counsel asserts that a meritorious argument exists in favor of amending the written judgment. Counsel asserts that the written judgment erroneously states that Lambright was sentenced to 365 days with 350 days suspended each on Count 1 and Count II, to run consecutively, when the District Court orally sentenced Lambright to 180 days with 165 days on each count to run consecutively. Counsel requests that this Court remand the matter to the District Court with instructions to amend the judgment accordingly. Counsel indicates that opposing counsel has been contacted and does not object to remanding the matter to the District Court with instructions to amend the written judgment accordingly.
An Anders brief and motion to withdraw is not the mechanism by which this Court can order relief. Counsel must either brief the matter, along with any other issues counsel believes are not wholly frivolous or move for dismissal and remand so that the State may either object or join in the motion.
Therefore, IT IS ORDERED that counsel's motion for leave to withdraw is DENIED.
IT IS FURTHER ORDERED that Appellant's opening brief shall be due within thirty days of the date of this Order.
The Clerk is directed to provide copies of this Order to all counsel of record and to Lambright personally. '