11/01/2022

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0592

DA 22-0592

STATE OF MONTANA, ORIGINAL Plaintiff and Appellee, NOV 0 1 2022 V• Bowen Greenwood ORDER Clerk of Supreme Court State of Montena RANDALL PATRICK ATKINS, Defendant and Appellant.

Randall Patrick Atkins has filed a verified Petition for an Out-of-Time Appeal and included a copy of the sentencing judgment.

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[1" As grounds, Atkins stated that he told his counsel that he wanted to appeal the judgment. While placed at the Missoula Assessment and Sanction Center (MASC), Atkins provides that he received a Notice of Appeal form from his sister and then sent it to the Office of Public Defenders in Kalispell, seeking an appeal. He has since learned that his counsel never filed an appeal as requested. He also includes a copy of an inmate request at MASC, seeking additional assistance, before being placed with a pre-release program.

According to his attachments, on April 13, 2022, the Nineteenth Judicial District Court, Lincoln County, sentenced Atkins to the Montana Department of Corrections for a five-year term with two years suspended for felony criminal possession of dangerous drugs.

Atkins also received two, suspended terms of 180 days for misdemeanor offenses of criminal possession of drug paraphemalia.

Upon review of this Court's docket, however, counsel for the Appellate Defender Division has filed a Petition for Out-of-Time Appeal, on Atkins's behalf, indicating that the Division has received Atkins's written requests for an appeal of the same underlying criminal case. See State v. Atkins, No. DA 22-0611, Petition for Out-of-Time Appeal filed Oct. 27, 2022. This Court will dismiss and close this appeal so the other appeal may proceed. Therefore, IT IS ORDERED that Atkins's Petition for an Out-of-Time Appeal, is DISMISSED.

Atkins will have an appeal pending as filed by the Appellate Defender Division.

The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Appellate Defender Division; counsel of record; and Randall Patrick Atkins at his last- known address.

The Clerk is further directed to close this case as of this Order's date.

DATED this --- Diay of November, 2022.

f Justices