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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 ofHabeas 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. SeeNunes v. State,No. OP 20-0618, Order denying habeas corpus relief(Mont. Jan. 12, 2021)(Nunes 1). We amend the caption to include the Sheriffof the Chouteau County Detention Center(CCDC) where Nunes is currently housed. In NunesI,we explained the factual background ofNunes incarceration: Nunes states he was cited for misdemeanorpartner or family member assault on December 11,2019,and was directed by the court to have no contactwith 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 ofthe case register ofactions 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 21-0078trial due to the trial being continued numerous times." Nunes I, at 2. We concluded that

habeas corpus reliefwas not appropriate because ofthe limited information available and that the intended motion to dismiss for lack ofspeedy trial "may require factfinding and analysis" of Nunes' situation, including his multiple charges, by the District Court. NunesI, 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 NunesIhas 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 of200 days speedy trial and triggering speedy trial analysis." We secured copies ofthe District Court's register ofactions 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 NunesI. The issue ofaspeedy trial violation is more appropriate forreview 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 ofHabeas Corpus is DENIED. The Clerk is directed to provide a copy ofthis 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;SheriffVern Burdick,and Neil L.Nunes personally. DATED this 4 day ofMarch,2021.

ChiefJustice
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Justices

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