No. 96-491

IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

MARK TURNER WIER, Defendant and Petitioner, v. LINCOLN COUNTY SHERIFF'S DEPARTMENT, and DISTRICT COURT OF THE NINETEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF LINCOLN, THE HONORABLE JUDGE MICHAEL C. PREZEAU, Presiding, Respondents.

APPEAL FROM: District Court of the Nineteenth Judicial District, In and for the County of Lincoln The Honorable Michael C. Prezeau, Judge presiding

COUNSEL OF RECORD: For Petitioner: James B. Wheelis, Public Defender's Office, Libby, Montana For Respondents: Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General, Helena, Montana; S. Charles Sprinkle, Lincoln county Attorney, Libby, Montana

Submitted: August 19, 1996 Decided: October 23, 1996 Justice James C. Nelson delivered the Opinion of the Court

Mark Turner Wier (Wier) filed herein a Petition for Writ of

Habeas Corpus for a Stay of Execution of Sentence and for the

Setting of a Bond to Bxure Appearance and Memorandum of

Authorities pursuant to Title 46, Chapter 22, Montana Code Annotated.

Procedural Background

On May 1, 1996, Wier was charged with partner assault, a misdemeanor, in violation of § 45-5-206, MCA, and carrying a

concealed weapon while under the influence, a misdemeanor, in violation of § 45-8-327. Wier posted a $2,000 bond and was

released pending trial. On July 19, 1996, trial was held in

Justice Court in Lincoln County. Wier did not appear and he was

found guilty in absentia. Sentencing was scheduled for August 15,

1996. There is no record of the sentencing other than a Commitment

Order signed by the Justice of the Peace on August 15, 1996,

wherein Wier was sentenced to five days in jail commencing August

15, 1996, at 3 p.m. and ending August 20, 1996, at 3 p.m.

Wier appealed to the Nineteenth Judicial District Court,

Lincoln County, on August 15, 1996, and requested a stay of

execution pending his appeal. The Justice of the Peace refused to

stay execution of Wier's sentence. On August 16, 1996, the

District Court also denied Wier's motion to stay execution of

sentence. There is no record of any proceeding held on this

motion. Wier filed a Petition for Writ of Habeas Corpus with this

Court on August 16, 1996, seeking his immediate release from

2 custody. The justice reviewing the petition declined to act in the

absence of the full Court. On August 20, 1996, this Court issued an Order staying the remainder of the sentence. The Court further ordered that the

Attorney General file a response to the petition addressing the

merits of Wier's argument in addition to any procedural matters.

Wier was released from custody at 9:46 a.m. on August 20, 1996, by

order of the Justice of the Peace.

Discussion

Wier argues that his ,incarceration was unlawful because an

"appeal from a judgment from justice court abrogates that judgment" and because an "appeal to district court renders incarceration

under a justice court's order illegal." The State contends that

since Wier is no longer in custody, his claim for relief is moot

and this Court should not address the substantive questions in this

case.

While a petition for writ of habeas corpus is moot once the

defendant is no longer in custody, State v. Sor-Lokken (19911, 247 Mont. 343, 351, 805 P.2d 1367, 1373, the issue here is one that is

"capable of repetition, yet evading review." See Weinstein v.

Bradford (1975), 423 U.S. 147, 96 S.Ct, 347, 46 L.Ed.2d 350. This

Court has previously stated: When faced with constitutional questions which are capable of repetition yet could avoid review, this Court will consider the merits of the issues raised on appeal. Romero v. J 6c J Tire (19891, 238 Mont. 146, 148, 777 P.2d 292, 294; Butte-Silver Bow Local Gov't v. Olsen (19871, 228 Mont. 77, 82, 743 P.2d 564, 567. As we stated in Butte-Silver Bow: [tlhe exception to mootness for those actions that 3 are capable of repetition, Yet evading review, usually is applied to situations involving governmental action where it is feared that the challenged action will be repeated. Butte Silver Bow, 743 P.2d at 567.

Common Cause v. Statutory Committee (1994), 263 Mont. 324, 328, 868 P.2d 604, 606-7. The constitutional issue implicated here is

Wier's right to a reasonable bail. U.S. Const. Amend. VIII; Art.

II, Sec. 22, Mont. Const.

Hence we accept jurisdiction to review the substantive issues

raised in this case by writ of supervisory control. We are empowered to do so by Article VII, Section 2(l) of the Montana Constitution, granting this Court "original jurisdiction to issue,

hear, and determine writs of habeas corpus and such other writs as

may be provided by law," and by Article VII, Section Z(2) of the

Montana Constitution, granting this Court "general supervisory

control over all other courts." State ex rel. Marlenee v. Dist. court, Etc. (1979), 181 Mont. 59, 62, 592 P.2d 153, 154

Release or detention pending appeal of a justice court

decision is governed by § 46-g-107, MCA, which provides:

A person intending to appeal from a judgment imposing a fine only or from any judgment rendered by a justice's court or city court must be admitted to bail. The court shall order the detention of a defendant found guilty of an offense who is awaiting imposition or execution of sentence or a revocation hearing or who has filed an appeal unless the court finds that, if released, the defendant is not likely to flee or pose a danger to the safety of any person or the community. [Emphasis added.1

Under the plain language of this statute, Wier had a right to

be admitted to bail pending his appeal unless the court found that

he was likely to flee or that he posed a danger to the safety of 4 any person or to the community. Neither the Justice Court, nor the District Court made any such finding in this case. In State ex rel. Abbitt v. Just. Ct. of Lake Cty. (1986), 220 Mont. 210, 213, 714 P.2d 140, 142, we noted that a person who has

appealed from a justice court order is not necessarily entitled to

release, but must go through the bail procedures. Thus, wier must

qualify for bail and the amount of his bail must be determined in

accordance with § 46-g-301, MCA. Once admitted to bail, Wier's

sentence should then be stayed by the trial court pending his

appeal, pursuant to § 46-20-204, MCA. The State contends that Wier did not attempt to be admitted to

bail, but only attempted to stay the execution of his sentence.

However, there was no opportunity for a bail hearing in this matter

as both the Justice of the Peace and the District Court Judge were

unavailable. Wier had previously posted a $2,000 bond in the

Justice Court proceeding to secure his release pending trial. The

Justice Court still retained this bond at the time of Wier's

appeal.

Accordingly, we hold that the Justice Court erred in failing

to stay the imposition of Wier's sentence pending his appeal to

District Court.