State v. F. Webb

07/09/2024

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0542

DA 22-0542 _________________ STATE OF MONTANA, Plaintiff and Appellee, v. ORDER FRANK WEBB, Defendant and Appellant. _________________ Rufus I. Peace, counsel for Defendant and Appellant Frank Webb has moved to dismiss this appeal. He asserts that he has not identified “any appealable issues with a reasonable likelihood of success on direct appeal,” and that Webb agrees to dismiss the appeal because he wishes to proceed with a petition for postconviction relief. However, Peace further alleges that he provided Webb with a formal waiver that Webb has not returned.

Under M. R. App. P. 16(4), except for an Anders motion pursuant to § 46-8-103(2), MCA, a party’s motion to voluntarily dismiss their appeal must be signed by both the moving party and their counsel. Although Peace asserts an Anders-like basis for not moving forward with this appeal, he has not complied with § 46-8-103(2), MCA.

Furthermore, Webb has not signed the motion to dismiss.

As such, this Court denies the motion because it lacks Webb’s requisite personal signature as a motion to voluntarily dismiss under M. R. App. P. 16(4). Counsel may choose to file a renewed motion for dismissal that complies with M. R. App. P. 16(4) or may file a motion and brief in compliance with § 46-8-103(2), MCA.

IT IS THEREFORE ORDERED that the motion to dismiss is DENIED.

The Clerk is directed to provide a copy of this Order to all counsel of record and to Webb personally.

Electronically signed by: Mike McGrath Chief Justice, Montana Supreme Court July 9 2024