UP*

IN THE SUPREME COURT OF THE STATE OF MONTANA

NEIL L. NUNES,

Petitioner,

v.

OP 21-0078

STATE OF MONTANA,

COUNTY OF TETON, and

SHERIFF VERN BURDICK,

CHOUTEAU COUNTY DETENTION CENTER,

Respondents.

ORDER

FILED

MAR 0 2 2021

Bovven Greenwood

Clerk of Suprerne Court

State of Montz,--na

Neil L. Nunes has filed his second Petition for a Writ of Habeas Corpus this year,

again contending that his incarceration is illegal because he has been incarcerated for more

than a year. We recently denied a similar petition filed by Nunes. See Nunes v. State, No.

OP 20-0618, Order denying habeas corpus relief (Mont. Jan. 12, 2021) (Nunes 1). We

amend the caption to include the Sheriff of the Chouteau County Detention Center (CCDC)

where Nunes is currently housed.

In Nunes I, we explained the factual background of Nunes incarceration:

Nunes states he was cited for misdemeanor partner or family member assault

on December 11, 2019, and was directed by the court to have no contact with

his ex-wife. However, he states that he later had contact with her at a gas

station in violation of the no[]contact order and was charged with felony

intimidation on December 12, 2019, having his initial appearance on

December 17, 2019. Following his appearance, Nunes state he was detained

in the CCDC in Fort Benton and has been held there ever since. He states

that he was charged on February 24, 2020, with two counts of witness

tampering. We secured copies of the case register of actions and the most

recent minute entry for Nunes' criminal proceedings in the Teton County

District Court. Nunes also has two other pending felony cases for failure to

register as a violent or sexual offender, for which he has been held since

December 13, 2019. He has been appointed counsel.

Nunes I, at 1. We also noted the December 14, 2020 minute entry reflected that counsel

for Nunes "advised the [c]ourt that a Motion to Dismiss will be filed for lack of speedy

03/02/2021

Case Number: OP 21-0078
trial due to the trial being continued numerous times." Nunes I, at 2. We concluded that

habeas corpus relief was not appropriate because of the limited information available and

that the intended motion to dismiss for lack of speedy trial "may require factfinding and

analysis" of Nunes' situation, including his multiple charges, by the District Court.

Nunes I, at 2. We served a copy of our order upon Nunes's counsel of record and the

presiding Judge.

Perhaps our reference to limited information in Nunes I has prompted Nunes to file

a second petition with more information. He includes attachments with his Petition

reflecting a pending case has been continued several times. The District Court initially set

a trial for June 22, 2020, and trial has been re-set at least three times, and is presently set

for April 12, 2021. Nunes now states he has been incarcerated for more than 432 days or

"232 days past the threshold of 200 days speedy trial and triggering speedy trial analysis."

We secured copies of the District Court's register of actions for his three cases. Despite

the earlier indication, it does not appear a motion to dismiss has yet been filed by Nunes'

counsel. On January 27, 2021, the court set a status hearing for March 9.

It remains true that any such motion would require factfinding, as we noted in

Nunes I. The issue of a speedy trial violation is more appropriate for review on appeal after

the issue is addressed in the trial proceedings, and a record is made. State v. Ariegwe, 2007

MT 204, ¶¶ 119-155, 338 Mont. 442, 167 P.3d 815. Therefore,

IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DENIED.

The Clerk is directed to provide a copy of this Order to Austin Knudsen, Attorney

General; Lisa Sinton, Clerk of Court, Teton County, under Cause Nos. DC-19-028,

DC-19-031, and DC-20-001; Jen Stutz, Deputy County Attorney; Roberta Cross Guns,

Attorney for Defendant; Sheriff Vern Burdick, and Neil L. Nunes personally.

DATED this 

4 

day of March, 2021.

Chief Justice

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Justices

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