IN THE SUPREME COURT OF THE STATE OF MONT NO.93-176 1998MT 255

Petitioner,

v. STATE OF MONTANA, Respondent, OPINION and ORDER

71 Kristofer Hans (Hans) moves this Court toreconsider its July 14, 1998order, denying his second amendedpetition for postconviction relief. The StateofMontana has responded. The controlling issue before this Court is whether Hans' motion for reconsideration isbarred by Rule 34, M.R.App.P. Factual and Procedural Background 72 Hans was sentenced to two terms of 100years plus 3 years for the use of a weapon and two terms of 10 years plus 2 years for the use of a weapon, tobe served concurrently, in June, 1988. His original counsel, Bradley Parrish (Parrish), filed a notice of appeal, but the notice was subsequently withdrawn. Hans filed apro

### se petition for postconviction relief

as an original proceeding with this Court on April 12, 1993. This Court appointed counsel from Montana's Appellate Defender Office torepresent Hans, and an amended petition forpostconviction relief was filed on November 17, 1993. On August 25, 1994 this Court entered an order denying two of Hans' claims, remanding his allegations of ineffective assistanceofcounsel for an evidentiary hearing and findings offact and conclusions of law, and reserving its ruling on the remaining issues. The District Court held a hearing in November, 1994and enteredfindings of fact and conclusions oflaw on November 21, 1996, concluding that Hans' counsel had not been ineffective except in his failureto preserve Hans' right to appeal. On July 2, 1997 this Court entered an opinion and order denyingHans' other claims but granting him leave to amend his petition to address claims that were foreclosed fromreviewbecause of counsel's failure to pursue a direct appeal. Hans v. State (1997),283 Mont. 379, 410, 942 P.2d 674, 693. In September, 1997 Hans filed a second amended petition. The State filed a motion to dismiss Hans' petition or to strike his claims. In January, 1998 this Court entered an opinion and order granting the State's motion to strike

one of Hans' claims but holding that Hans' other claims were properly raised and that this Court would review them. Petition of Hans, 1998 MT 7,958P.2d 1175, 

### 55 St.Rep. 21. In July, 1998 this Court entered its order denying Hans' second amended petition for postconviction relief. 73 Hans and the State dispute whether Rule 6O(b), M.R.Civ.P., applies in the present case. Hans contends that this Court may review his motion for reconsideration under the "reasonable time" limitation set forth in Rule 6O(b), M.R.Civ.P. The State responds thatHans' motion is in essence apetition for rehearing ofan original proceeding that commenced with this Court and that the petition is therefore governed by Rule 17(b),M.R.App.P., and Rule 34, M.R.App.P. The State argues further that under Rule 34, M.R.App.P., Hans' petition for rehearing was not timely. Rule 34provides in pertinent part: When, in appeals or special proceedings, it is ordered that remittitur, peremptory writ orjudgment issue forthwith, nopetition forrehearing will be entertained. In all other cases a petition for rehearing may be filed within 10 days afterthe decision of the supreme court has been rendered, unless the time is shortened or enlarged by order, and the adverse party shall have 7 days thereafter in which to serve and file objections thereto. Extensions of time will be granted only upon showing ofunusual merit, and in no event in excess of 10days. Rule 34, M.R.App.P. (emphasis added). We conclude that Hans' motion forreconsideration is in essence a petition for rehearing of an original proceeding that began in this Court in 1993. Wehold that Rule 34, M.R.App.P., governs petitions for rehearing ofproceedings for postconviction relief that originate with this Court. 14 Hans' motion for reconsideration is not timely under Rule 34, M.R.App.P. This Court denied Hans' amended petition for postconviction relief on July 14, 1998. Hans filed his motion for reconsideration of our order on July 31, 1998,more than ten days after we entered our order. Because Hans' motion for reconsideration was untimely under Rule 34, M.R.App.P., we do not address the other issues that Hans has raised. 75 Based on the foregoing, 76 IT IS ORDERED that Hans' motion forreconsideration is DENIED with prejudice.117 The Clerk is DIRECTED to mail a copy of this order to William F. Hooks, Hans' counsel ofrecord, and to counsel for the State. *$ DATED this& aay of October, 1998.

Justices