Opinion
OP 22-0470
11-15-2022
COY YARBER, Petitioner, v. JAMES SALMONSEN, Warden, Respondents.
ORDER
Coy Yarber petitions this Court for rehearing of a September 20,2022 Order where this Court denied and dismissed his Petition for Writ of Habeas Corpus because Yarber did not demonstrate a facially invalid sentence or illegal restraint, pursuant to § 46-22-101(1), MCA.
Yarber contends that the District Court did not transfer jurisdiction of his Youth Court case to District Court because the cause number remained the same. Yarber provides additional attachments. He argues that he is entitled to credit for time served under Montana law, citing to §§ 46-18-203(7)(b) and 46-18-403, MCA. Yarber states that his criminal case (DC-18-496) was not a sentence upon revocation. Section 46-18-201, MCA.
This Court "will consider a petition for rehearing presented only upon ... [t]hat it overlooked some fact material to the decision[,] ... or [t]hat its decision conflicts with a statute or controlling decision not addressed by the supreme court." M. R. App. P. 20(1)(a)(i) and (iii). "Absent clearly demonstrated exceptional circumstances, the supreme court will not grant petitions for rehearing of its orders disposing of motions or petitions for extraordinary writs." M. R. App. P. 20(1)(d).
Yarber is entitled to rehearing because this Court overlooked some fact material to the decision. Yarber raises the issue of whether he is due credit for time served on a sentence that was not a revocation. Section 46-18-201(9), MCA (2017). He includes a copy of the sentence calculations. Yarber may be entitled to credit for time served for the sentence imposed by the Cascade County District Court (ADC-18-496), pronounced on February 20. 2019.
Therefore, upon review of Yarber's Petition for Rehearing about his sentence and no credit for lime served awarded, we deem it appropriate to require a response. This Court will address his other claims after the response is received.
IT IS ORDERED that Yarber's Petition for Rehearing is GRANTED IN PART to elicit a response from the Attorney General or counsel for the Department of Corrections.
IT IS FURTHER ORDERED that the Attorney General or counsel for the Department of Corrections is GRANTED thirty days from the date of this Order in which to prepare, file, and serve a written response to the petition for rehearing with appropriate documentary exhibits concerning Yarber's claim of credit for time served.
The Clerk of the Supreme Court is directed to provide a copy of this Order to the Attorney General; to counsel for the Department of Corrections; and to Coy Yarber personally.