No. 96-491 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

MARK TURNER WIER, 

Defendant and Petitioner, 

v. 

LINCOLN COUNTY SHERIFF'S DEPARTMENT, 

and DISTRICT COURT OF THE NINETEENTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTANA, IN AND FOR THE COUNTY OF 

LINCOLN, THE HONORABLE JUDGE MICHAEL 

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 

COUNSEL OF RECORD: 

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, 1996 
Justice James C. Nelson delivered the Opinion of the Court 

Mark Turner Wier (Wier) filed herein a Petition 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. On July 19, 1996, trial was held in 

Justice Court in Lincoln County. Wier did not appear and he was 

found guilty in absentia. Sentencing was scheduled for August 15, 

1996. There is no record of the sentencing other than a Commitment 

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 3 p.m. and ending August 20, 1996, at 3 p.m. 

Wier appealed to the Nineteenth Judicial District Court, 

Lincoln County, on August 15, 1996, and requested a stay of 

execution pending his appeal. The Justice 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 a Petition for Writ of Habeas Corpus with this 

Court on August 16, 1996, seeking his immediate release from 

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custody. The justice reviewing the petition declined to act in the 

absence of the full Court. 

On August 20, 1996, this Court issued an Order staying the 

remainder of the sentence. The Court further ordered that the 

Attorney General file a response 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. on August 20, 1996, by 

order of the Justice of the Peace. 

Discussion 

Wier argues that his ,incarceration was unlawful because an 

"appeal from a judgment from justice court abrogates that judgment" 

and because an "appeal to district court renders incarceration 

under a justice court's order illegal." The State contends that 

since Wier is no longer in custody, his claim for relief is moot 

and this Court should not address the substantive questions in this 

case. 

While a petition for writ of habeas corpus is moot once the 

defendant is no longer in custody, State v. Sor-Lokken (19911, 247 

Mont. 343, 351, 805 P.2d 1367, 1373, the issue here is one that is 

"capable of repetition, yet evading review." See Weinstein v. 

Bradford (1975), 423 U.S. 147, 96 S.Ct, 347, 46 L.Ed.2d 350. This 

Court has previously stated: 

When faced with constitutional questions which are 

capable of repetition yet could avoid review, this Court 

will consider the merits of the issues raised on appeal. 

Romero v. J 6c J Tire (19891, 238 Mont. 146, 148, 777 P.2d 

292, 294; Butte-Silver Bow Local Gov't v. Olsen (19871, 

228 Mont. 77, 82, 743 P.2d 564, 567. As we stated in 

Butte-Silver Bow: 

[tlhe exception to mootness for those actions that 

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are capable of repetition, Yet evading review, 

usually is applied to situations involving 

governmental action where it is feared that the 

challenged action will be repeated. 

Butte Silver Bow, 743 P.2d at 567. 

Common Cause v. Statutory Committee (1994), 263 Mont. 324, 328, 868 

P.2d 604, 606-7. The constitutional issue implicated here is 

Wier's right to a reasonable bail. U.S. Const. Amend. VIII; Art. 

II, Sec. 22, Mont. Const. 

Hence we accept 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, and determine writs of habeas corpus and such other writs as 

may be provided by law," and by Article 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), 181 Mont. 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: 

A person intending to appeal from a judgment imposing a 

fine only or from any judgment rendered by a justice's 

court or city court must be admitted to bail. The court 

shall order the detention of a defendant 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 a danger to the 

safety of any person or the community. [Emphasis 

added.1 

Under the plain language of this statute, Wier had a right to 

be admitted to bail pending his appeal unless the court found that 

he was likely to flee or that he posed a danger to the safety of 

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any person or to the community. Neither the Justice Court, nor the 

District Court made any such finding in this case. 

In State ex rel. Abbitt v. Just. Ct. of Lake Cty. (1986), 220 

Mont. 210, 213, 714 P.2d 140, 142, we noted that a person who has 

appealed from a justice court order is not necessarily entitled to 

release, but must go through the bail procedures. Thus, wier must 

qualify for bail and the amount of his bail must be determined 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 be admitted to 

bail, but only attempted to stay the execution of his sentence. 

However, there was no opportunity for a bail hearing in this matter 

as both the Justice of the Peace and the 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, we hold that the Justice Court erred in failing 

to stay the imposition of Wier's sentence pending his appeal to 

District Court.