In re Petition of Gary Lynn ALLEN.
No. 12477.Supreme Court of Montana.
March 23, 1973.*1050 PER CURIAM:
Original proceeding. Petitioner applies for a writ of habeas corpus pro se. He is presently confined in the Montana State Prison under a commitment issued by the district court of Yellowstone County.
Petitioner employed John L. Adams, Esq., an attorney of Billings, Montana, to defend him. Previously, while county attorney, said counsel had prosecuted petitioner for the crime of grand larceny in 1968 and upon his conviction petitioner had been sentenced to a term of two years. The present charge and trial was in October of 1972. Petitioner at all times and particularly when he employed said counsel knew he was the attorney who had formerly prosecuted him for an unrelated crime to the one here involved.
Petitioner contends that the Lucero case, Mont., 504 P.2d 992, 30 St.Rep. 161, and the Levi Campbell case, Mont., 505 P.2d 1214, 30 St.Rep. 218, require that he be granted a new trial with new counsel. These cases are not authority for that position for in each case the counsel was court appointed and the defendants there had nothing to say about who should represent them on their defense. That is not the situation here. Petitioner also asserts that his counsel knowingly defended him in violation of section 94-3509, R.C.M. 1947. This averment is also incorrect in that that section prohibits an attorney from defending in a cause which he instituted while a public officer, or whose partner did so, or from defending a cause which arose while he occupied an official position. This is not the situation here, Adams had long before completed his prosecution of petitioner, Allen's sentence had been served, and when again in trouble with the law, petitioner sought out the services of Adams in his defense. This petitioner was free to do and Adams could accept such employment and in no way did any violation of the statute occur.
The relief sought is denied and the proceeding is dismissed.