No. 96-491 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1996

MARKTURNERWIER,

Defendant and Petitioner,

v. LINCOLN COUNTYSHERIFF'S DEPARTMENT, andDISTRICT COURTOFTHENINETEENTH JUDICIAL DISTRICT OFTHESTATE OF MONTANA, INANDFORTHECOUNTYOF LINCOLN, THEHONORABLEJUDGEMICHAEL C. PREZEAU, Presiding,

Respondents.

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln The Honorable Michael C. Prezeau, Judge presiding

COUNSELOFRECORD:

For Petitioner: James B. Wheelis, Public Defender's Office, Libby, Montana For Respondents: Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General, Helena, Montana; S. Charles Sprinkle, Lincoln county Attorney, Libby, Montana

Submitted: August 19, 1996 Decided: October 23, 1996Justice James C. Nelson delivered the Opinion of the Court

Mark Turner Wier (Wier) filed herein aPetition for Writ of Habeas Corpus for a Stay of Execution of Sentence and for the Setting of a Bond to Bxure Appearance and Memorandum of Authorities pursuant to Title 46, Chapter 22, Montana Code Annotated. Procedural Background On May 1, 1996, Wier was charged with partner assault, a misdemeanor, in violation of § 45-5-206, MCA, and carrying a concealed weapon while under the influence, a misdemeanor, in violation of § 45-8-327. Wier posted a $2,000 bond and was released pending trial. OnJuly 19, 1996, trial was held in Justice Court in Lincoln County. Wier did not appear and hewas found guilty in absentia. Sentencing wasscheduled for August 15, 1996. There is norecord of the sentencing other than aCommitment Order signed by the Justice of the Peace on August 15, 1996, wherein Wier was sentenced to five days in jail commencing August 15, 1996, at 3p.m. and ending August 20, 1996, at 3p.m. Wier appealed to the Nineteenth Judicial District Court, Lincoln County, on August 15, 1996, and requested a stay of execution pending his appeal. TheJustice of the Peace refused to stay execution of Wier's sentence. On August 16, 1996, the District Court also denied Wier's motion to stay execution of sentence. There is no record of any proceeding held on this motion. Wier filed aPetition for Writ of Habeas Corpus with this Court on August 16, 1996, seeking his immediate release from 2custody. Thejustice reviewing the petition declined to act in the

absence of the full Court. OnAugust 20, 1996, this Court issued an Order staying the remainder of the sentence. The Court further ordered that the Attorney General file aresponse to the petition addressing the merits of Wier's argument in addition to any procedural matters. Wier was released from custody at 9:46 a.m. onAugust 20, 1996, by order of the Justice of the Peace. Discussion Wier argues that his ,incarceration was unlawful because an "appeal from ajudgment from justice court abrogates that judgment" and because an "appeal to district court renders incarceration under ajustice court's order illegal." The State contends that since Wier is no longer in custody, his claim for relief is moot andthis Court should not address the substantive questions in this

case.While apetition for writ of habeas corpus is moot once the defendant is nolonger in custody, State v. Sor-Lokken (19911, 247 Mont. 343, 351, 805P.2d 1367, 1373, the issue here is onethat is "capable of repetition, yet evading review." See Weinstein v. Bradford (1975), 423U.S. 147, 96S.Ct, 347, 46L.Ed.2d 350. This Court has previously stated:

Whenfaced with constitutional questions which are capable of repetition yet could avoid review, this Court will consider the merits of the issues raised onappeal. Romero v. J6cJTire (19891, 238Mont. 146, 148, 777P.2d 292, 294; Butte-Silver BowLocal Gov't v. Olsen (19871, 228 Mont. 77, 82, 743 P.2d 564, 567. As westated in Butte-Silver Bow: [tlhe exception to mootness for those actions that 3are capable of repetition, Yet evading review, usually is applied to situations involving governmental action where it is feared that the challenged action will berepeated. Butte Silver Bow, 743 P.2d at 567. CommonCausev. Statutory Committee (1994), 263Mont. 324, 328, 868 P.2d 604, 606-7. The constitutional issue implicated here is Wier's right to areasonable bail. U.S. Const. Amend. VIII; Art. II, Sec. 22, Mont. Const. Hence weaccept jurisdiction to review the substantive issues raised in this case by writ of supervisory control. We are empowered to do so by Article VII, Section 2(l) of the Montana Constitution, granting this Court "original jurisdiction to issue, hear, anddetermine writs of habeas corpus and such other writs as may beprovided by law," and byArticle VII, Section Z(2) of the Montana Constitution, granting this Court "general supervisory control over all other courts." State ex rel. Marlenee v. Dist. court, Etc. (1979), 181Mont. 59, 62, 592 P.2d 153, 154 Release or detention pending appeal of a justice court decision is governed by §46-g-107, MCA,which provides: Aperson intending to appeal from ajudgment imposing a fine only or from any judgment rendered by ajustice's court or city court must beadmitted tobail. The court shall order the detention of adefendant found guilty of an offense who is awaiting imposition or execution of sentence or a revocation hearing or who has filed an appeal unless the court finds that, if released, the defendant is not likely to flee or pose adanger to the safety of any person or the community. [Emphasis added.1 Under the plain language of this statute, Wier had aright to beadmitted to bail pending his appeal unless the court found that hewas likely to flee or that heposed adanger to the safety of 4anyperson orto the community. Neither the Justice Court, nor the

District Court made any such finding in this case. In State exrel. Abbitt v. Just. Ct. of Lake Cty. (1986), 220 Mont. 210, 213, 714 P.2d 140, 142, wenoted that aperson whohas appealed from ajustice court order is not necessarily entitled to release, but must gothrough the bail procedures. Thus, wier must qualify for bail andthe amount of his bail must bedetermined in accordance with §46-g-301, MCA. Once admitted to bail, Wier's sentence should then be stayed by the trial court pending his appeal, pursuant to §46-20-204, MCA. The State contends that Wier did not attempt to beadmitted to bail, but only attempted to stay the execution of his sentence. However, there wasnoopportunity for abail hearing in this matter

asboth the Justice of the Peace andthe District Court Judge were unavailable. Wier had previously posted a $2,000 bond in the Justice Court proceeding to secure his release pending trial. The Justice Court still retained this bond at the time of Wier's appeal.Accordingly, wehold that the Justice Court erred in failing to stay the imposition of Wier's sentence pending his appeal to District Court.