j ORIGINA1 07/11/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0358
DA 23-0358
F:LED
JAY ARNOLD WITKOWSKI, JUL 1 1 2C23
Bovven Gr_enwoOd
Clerk of Suprerne Court
Appellant and Petitioner, State of Montana
v.
ORDER
STATE OF MONTANA,
Appellee and Respondent.
Jay Donald Witkowski moves for the appointment of counsel in this appeal.
Witkowski appeals a May 3, 2023 order entered by the Seventeenth Judicial District Court,
Valley County, denying his motion to vacate the judgment for his 2018 conviction of
aggravated kidnapping. The order was entered in his original criminal case.
The Court has addressed this matter previously. In October 2020, Witkowski
attempted to appeal his 2018 conviction and sentence for aggravated kidnapping by way
of a petition for an out-of-time appeal. We denied the petition, stating, "Witkowski
provides no reason for his delay now when, in 2018, he was aware of how the process for
seeking untimely appeals works in this Court." State v. Witkowski, No. DA 20-0528,
Order, at 2 (Mont. Nov. 10, 2020). Then, in August 2021, Witkowski appealed the District
Court's dismissal of his petition for postconviction relief on the 2018 aggravated
kidnapping conviction. We affirmed. Witkowski v. State, No. DA 21-0425, 2023 MT 40N,
2023 Mont. LEXIS 278 (Mar. 7, 2023))
Witkowski is not entitled to appointment of counsel, but further, the appeal is
improper. Montana law provides that "[a]n appeal may be taken by the defendant only
from a final judgment of conviction and orders after judgment which affect the substantial
We observe that, during the pendency of this appeal, Witkowski filed a Motion to
Vacate/Overturn/Dismiss Judgement/Conviction and Sentencing with this Court.
rights of the defendant." Section 46-20-104(1), MCA. Witkowski previously attempted
an appeal of his conviction by an out-of-time appeal, which this Court denied. Recently,
this Court affirmed the District Court's dismissal of his petition for postconviction relief
of that conviction.2 Both decisions are considered final judgments. M. R. App. P. 19(2).
Witkowski cannot return to this Court by appealing an order filed within the same criminal
case denying a motion to set aside the judgment. We caution Witkowski that further
attempts to create avenues to appeal his 2018 conviction may be sanctioned by a pre-filing
restriction. Therefore,
IT IS ORDERED that this appeal is DISMISSED sua sponte and the Motion for
Appointment of Counsel is DENIED, as moot.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel
of record and to Jay Donald Witkowski personally.
The Clerk is also directed to CLOSE this matter as of this Order's date.
DATED this Pitkday of July, 2023.
e94 AI 211,.
Justices
2This Court has also denied Witkowski habeas corpus relief concerning his aggravated kidnapping
conviction and sentence. Witkowski v. Bludworth, No. OP 23-0167, Order (Mont. Mar. 28, 2023).
2