# IGNAL

IN THE SUPREME COURT OF THE STATE OF MONTANA DA 20-0129

_ SHANEPHILLIP NICKERSON,

Petitioner and Appellant,

v. STATE OF MONTANA,

Respondent and Appellee. 

# FILED SEP 08 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 thatthis appeal is notproperly before this Court. The Stateputs 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 ofthis 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 ofAppeal 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 thathis first Notice ofAppeal 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 09/08/2020

Case Number: DA 20-0129turnaround 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 withoutpaying the filing fee which the Clerk's Office filed on March 2,2020. Here,an incarcerated, indigent individual represents himselfin 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 ofhis 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 ofaccess 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 argumentconcerning the merit, timeliness, or substance ofNickerson's claims regarding his denial of a postconviction reliefpetition on appeal in a response brief. Accordingly, IT IS ORDERED that the State's Opposed Motion to Dismiss Appeal is DENIED and thatthe State shallhavethirty days from the date ofthis Orderwithin 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 ofthis Order to counsel ofrecord and to Shane Phillip Nickerson

, x . r .. sonally. DATED this day ofSeptember,2020.

ChiefJustice

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