IGNAL

IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 20-0129 _

SHANE PHILLIP NICKERSON,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Appellee.

FILED

SEP 0 8 2020

Bowen Greenwood

Clerk of Supreme Court

State of Montana

ORDER

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 of the

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

09/08/2020

Case Number: DA 20-0129
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 of Postconviction 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 of this Order within which to prepare,

file, and serve a response brief. The State is not prohibited from seeking a motion for

extension of time 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...rsonally.

DATED this day of September, 2020.

Chief Justice

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