State v. M. Gossard

Opinion

08/24/2020

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 19-0365

No. DA 19-0365

STATE OF MONTANA,

Plaintiff and Appellee,

v.

MONTE BLAIN GOSSARD,

Defendant and Appellant.

ORDER

Upon consideration of Appellant’s motion and good cause

appearing, Appellant’s Unopposed Motion to Stay Appeal and Allow

Appellant’s Trial Counsel to Move the District Court to Establish the

Record is GRANTED.

IT IS ORDERED that within 15 days from entry of this Order,

Defense Counsel Roberta Cross Guns shall prepare, serve, and file with

the clerk of the district court a motion for leave to prepare a statement

of the unavailable evidence from the best available means, including

the party’s recollection of the September 17, 2018, in-chambers

conference. Counsel for the State shall have 15 days to respond in

writing. If the district court grants the motion to recreate the record,

defense counsel must, within 20 days of the district court’s order,

prepare, serve, and file with the clerk of the district court a statement of

the unavailable evidence from the best available means, including the

party’s recollection. This statement must specify the source or sources

of the party’s statements of evidence and shall be limited to unavailable

evidence that is relevant to the issues on appeal. From the date the

statement is filed, the State shall have 15 days to respond in writing.

The district court shall examine the statement of unavailable

evidence and any response and may hold a hearing. The district court

shall then promptly file with the clerk of the district court an order

adopting or rejecting, in whole or in part, the statement of unavailable

evidence of the September 17, 2018 conference such that any statement

adopted by the district court most accurately reflects the unavailable

evidence. The parties shall have 15 days from the date of filing of the

district court’s order to file written objections with the clerk of the

district court with contemporaneous service on the opposing party.

The district court’s order shall then constitute the record on

appeal as to the September 17, 2018 conference. Any properly

ORDER preserved objection to the district court’s order or to these proceedings

under Mont. R. App. Pro. 8(7) may be raised in an amended notice of

appeal or cross-appeal filed and served within 15 days of the

transmission of the district court’s order and associated documents by

the clerk of the district court to the Clerk of this Court.

IT IS FURTHER ORDERED that the briefing schedule in this

appeal is STAYED. Appellant’s opening brief on appeal shall be due 30

days after the Clerk of this Court receives either the district court’s order

denying the motion to recreate the record of the September 17, 2018

conference or the district court’s order adopting a statement of that

conference.

The Clerk shall serve a copy of this Order upon the Toole County

Clerk of District Court.

Electronically signed by: Mike McGrath ORDER Chief Justice, Montana Supreme Court August 24 2020