State v. Burchill

• Court: Montana Supreme Court
• Decided: July 23, 2024
• Docket: DA 24-0345
• Status: Unpublished

Opinion

07/23/2024

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 24-0345

DA 24-0345

STATE OF MONTANA,

Plaintiff and Appellee,

v. ORDER

DUANE ANGELO BURCH1LL, FLED Defendant and Appellant. JUL 2 3 2024 Bowen Greenwood Clark of supreme Court stata of Montana

Appellant Duane Angelo Burchill moves this Court to stay his appeal and remand the case to the Eighteenth Judicial District Court, Gallatin County, to "Rule on Pending Motions for [Subpoenas]." ,Burchill is appealing a May 17, 2024 order entered by the District Court that denied his motion for new trial. Therein, Burchill had challenged the jury that was drawn and impaneled for his 2017 trial. The State of Montana responds in opposition. Burchill argues the District Court's denial order is "incorhplete" because the court did not rule on Burchill's Motion for Subpoenas of Production of Evidence. He states that, due to this pending motion, his appeal is premature, and that "the ruling of the pending motion changes everything." Citing to other decisions from two district courts, Burchill contends that other counties in Montana "are ordering the subpoenas for other cases . ." The State responds that Burchill's motion is imiproper. Burchill appealed his three 2017 felony convictions after trial and this Court affirmed them. State v. Burchill, 2019 MT 285, ¶¶ 1, 11, 39, 398 Mont. 52, 454 P.3d 633. Burchill further sought postconviction relief, which the District Court denied, and this Court affirmed. Burchill v. State, 2024 MT 20, 415 Mont. 129, 542 P.3d 742. The State posits that the issue on appeal is whether the court erred in denying Burchill's motion for a new trial, based on the record before the court, but that Burchill is seeking relief years after his convictions became final. The State . contends remand is not necessary because this Court may consider Burchill's pending appeal upon the record and briefmg. We conclude that Burchill's arguments for a stay and remand lack merit. This Court received the record on June 7, 2024. Burchill's opening brief was due on or before July 7, 2024. Burchill has not yet filed his brief nor has he sought a motion for extension of time to do so. Instead, he sought a stay with this Court. Accordingly, IT IS ORDERED that Burchill's Motion to Stay Appeal and Remand to the District Court to Rule on Pending Motions for Subpoenas is DENIED. IT IS FURTHER ORDERED that Burchill shall prepare, file, and serve his opening brief on or before August 6, 2024. He may seek an extension of time to file his opening brief, pursuant to M. R. App. P. 26, prior to that date. Failure to file either a motion for extension of time or an opening brief before that date may result in dismissal of this appeal and without further notice. The Clerk is directed to provide a copy of this Order to counsel of record and to Duane Angelo Burchill along with a copy of this Court's Appellate Handbook. DATED this ag aday ofJuly, 2024.

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