IGNAL 09/08/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0129
DA 20-0129 _
FILED
SHANE PHILLIP NICKERSON, SEP 0 8 2020
Bowen Greenwood
Clerk of Supreme Court
Petitioner and Appellant, State of Montana
v. ORDER
STATE OF MONTANA,
Respondent and Appellee.
Counsel for the State of Montana rnoves this Court for dismissal of this appeal.
After receiving extra time to do so, self-represented Appellant Shane Phillip Nickerson
responds in opposition.
The State contends that this appeal is not properly before this Court. The State puts
forth correctly that our rule's for acquiring jurisdiction are strict. M. R. App. P. 4(5)(a)(i).
The State points out that Nickerson's appeal is untimely because it was filed three 'days
past the sixtY-day deadline. The State explains that the Flathead County District Court
issued a final judgment denying Nickerson's petition for postconviction relief on
Decernber 30, 2019, and that a tirnely appeal should have been filed by February 28,2020.
The State concludes that dismissal of this appeal is warranted and that this Court should
not allow Nickerson's appeal to proceed as an out-of-time appeal, pursuant to M. R.(App.
P. 4(6).
Nickerson acknowledges that his Notice of Appeal was due on February 28, 2020.
He states that he initial.ly filed his appeal in mid-February but that it was returned to him.
Nickerson explains that his first Notice of Appeal was timely received in the Office ofthe
Clerk of Supreme Court, but he did not include an accompanying motion to proceed
without paying the filing fee. He further states that due to his incarceration and current
placement in prison for .his safety with a lack of access to legal resources, 'a 'quick
turnaround with mailing documents is difficult to achieve.
Nickerson provides a copy of a February 18, 2020 letter from the Clerk of the
Supreme Court. The Clerk's Office returned Nickerson's document, titled "Appeal of
Denial ofPostconviction Relief' because Nickerson failed to include the filing fee of$100
or a motion to proceed without paying the filing fee. Nickerson resubmitted his appeal
notice and a motion to proceed without paying the filing fee which the Clerk's Office filed
on March 2, 2020.
Here, an incarcerated, indigent individual represents himself in an appeal during a
pandemic before this Court. We agree that Nickerson's appeal should not proceed as an
out-of-time appeal. We, however, disagree that dismissal of his appeal is warranted. To
disrniss this appeal now for three days' delay seems to run contrary to what this Court
attempts to achieve with its mantra of access to the courts for all litigants. Nickerson had
submitted his Notice of Appeal previously and then re-submitted it for filing with the
necessary motion completed. The State may put forth any argument concerning the merit,
timeliness, or substance of Nickerson's claims regarding his denial of a postconviction
relief petition on appeal in a response brief. Accordingly,
IT IS ORDERED that the State's Opposed Motion to Dismiss Appeal is DENIED
and that the State shall have thirty days from the date ofthis Order within which to prepare,
file, and serve a response brief. The State is not prohibited from seeking a motion for
extension oftime to do so. M.R. App. P. 16.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Shane Phillip Nickerson
,x..r.sonally.
DATED this day of September, 2020.
Chief Justice
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