State v. K. Walla

1IGINAIJ 03/05/2024

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0483

DA 22-0483

STATE OF MONTANA, Plaintiff and Appellee.

v. ORDER KEVIN CHARLES WALLA, FILED Defendant and Appellant. MAR - 5 2024 Bowen Greenwood Clerk of Supreme Court State of Montana

Appellant Kevin Charles Walla moves to stay appellate briefing in order to reconstruct the record of a September 13, 2021 motion hearing and an October 18, 2021 Informal Omnibus Hearing, concerning his requests for a mental health evaluation by a PTSD expert and a new deadline for disclosing expert witnesses. Walla represents that the on February 15, 2024, the court reporter notified the District Court and the parties that due to a recording equipment failure no record of the September hearing was available. The court reporter filed an affidavit to that effect with this Court on the same date. As to the informal omnibus hearing, Walla states that no minutes of that hearing are listed on the case register and that no written record exists beyond the second omnibus order. Walla indicates further that, without agreeing with his account of the hearings at issue, the State does not object to Walla's request to move the district court to establish a record of the two hearings in question.

M. R. App. P. 8(7) sets forth the procedure for recreating a portion ofthe record if it is unavailable. Walla correctly observes that the deadlines in the rule cannot be met here, because Rule 8(7)(c) requires the moving party to file a motion with the District Court within fifteen days after filing the notice of appeal. Subsection (b) alternatively permits a joint written statement and stipulation between the parties, but it must be submitted with the District Court within thirty days after notice of appeal is filed. Here, Walla filed his Notice of Appeal on August 25, 2022. The court reporter did not advise of the unavailability of the September 2021 hearing record until just last month, and Walla submits that there is good cause to allow his request to proceed regarding both hearings despite the delay.

Without objection by the State, and good cause appearing, IT IS ORDERED that this appeal is STAYED pending the filing of the statement of unavailable hearing record pursuant to M. R. App. P. 8(7). The District Court retains the necessary jurisdiction to resolve this issue under M. R. App. P. 8(7)(g). The parties are directed to proceed in accordance with M. R. App. P. 8(7).

The Clerk is directed to provide notice of this order to all counsel of record, to the Clerk of the Tenth Jud'cial District Court, and to the Hon. Heather Perry, presiding judge.

Dated this day of March, 2024.

Chief Justice

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