Opinion
DA 21-0290
06-22-2021
STATE OF MONTANA, Plaintiff and Appellee. v. KYLE LEE SEVERSON, Defendant and Appellant.
ORDER
Kyle Lee Severson has filed a verified Petition for an Out-of-Time Appeal, indicating that he discussed filing a timely appeal with his attorney, but that counsel failed to file his appeal. Severson states that his counsel moved to withdraw but did not secure his right to appeal. He includes a copy of the final judgment along with a Notice of Appeal.
On January 4, 2021, the Seventh Judicial District Court, Richland County, issued its written Judgment and Sentence for Count I: Mitigated Deliberate Homicide, following a jury trial. The District Court had severed Count II of felony tampering with witnesses or informants. The court's register of actions shows that the District Court entered a Judgment and Sentence for Count II on February 12, 2021. Timely appeal was not filed for either judgment. The court appointed counsel from the Appellate Defender Division on April 29, 2021, and issued an order on May 24, 2021. allowing Severson's retained counsel to withdraw.
M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal ''[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice[.]"
Severson has a recent felony conviction and indicates that he is presently without counsel. We conclude that Severson may be entitled to pursue this appeal and to qualify for the appointment of counsel to represent him on appeal. Section 46-8-104, MCA.
IT IS ORDERED that Severson's Petition for an Out-of-Time Appeal is GRANTED.
IT IS FURTHER ORDERED that the Appellate Defender Division is APPOINTED to represent Kyle Lee Severson in this appeal. The Appellate Defender Division shall have thirty days from the date of this Order within which either to file a Notice of Appearance or a Motion to Rescind this Order Appointing Counsel. The Appellate Defender Division shall immediately order the appropriate transcripts, if they have not been already ordered.
The Clerk of the Supreme Court is directed to file Severson's attached Notice of Appeal as of this Order's date.
The Clerk also is directed to provide a copy of this Order to the Appellate Defender Division, to counsel of record, and to Kyle Lee Severson personally.