Opinion
No. 11001
Decided August 9, 1965. Supplemental Opinion August 30, 1965.
John Darby, an inmate of the Montana State Prison, pro se, has filed a petition for a writ of habeas corpus.
He alleges that he was sentenced to a term of five years upon a charge of grand larceny in the District Court of Hill County on October 19, 1961. He further alleges that counsel was appointed by the court to represent him and a plea of not guilty was entered; that some seventeen days later he was again before the court with his counsel and that said counsel entered a plea of guilty; that petitioner objected, stated he was not pleading guilty and had no desire to change his previous plea of not guilty; that the District Court disregarded his objections.
Further, that the property forming the basis for the charge of grand larceny was not of a value in excess of $25.00.
Further, that the sheriff did not file petitioner's notice of appeal which was delivered to him by petitioner and which the said sheriff advised petitioner he would file.
Considering that all these alleged matters occurred in 1961, uncomplained about until now, we label them at this point as startling, to say the least.
By reason of these allegations petitioner contends he was denied due process of law and that he was defended by ineffective counsel.
It appearing that this appellate court has no records in the cause of State v. Darby, and all thereof would be in the District Court of Hill County, and that such district court has not been afforded an opportunity to examine into the contentions of petitioner as before recited, and such court should have such opportunity.
Now therefore, it is ordered that this petition be transmitted to the District Court of Hill County, for such action as it deems appropriate, and that such court make and enter findings of fact upon each of the contentions made by petitioner, and that the petition, accompanied by copy of the court's findings, then be returned to this court.
Supplemental opinion.
On August 9, 1965, this court forwarded to the District Court of Hill County the petition of John Darby seeking a writ of habeas corpus in order that such court might be afforded the opportunity of examining the contentions of the petitioner as set forth therein. Pursuant to such order the District Court has made findings of fact and returned them to this court.
As to the allegations of the petitioner that his court appointed counsel entered a plea of guilty and that he objected, the district court states:
"This Court never on any occasion permitted anyone but the defendant himself to enter a plea to a felony charge and if there had been any objection made within the presence or hearing of the Court the plea of guilty would not have been accepted."
As to the value of the property the court found that it was valued at more than $50.00.
As to the filing of a notice of appeal the court's investigation disclosed that the sheriff had no recollection of any notice of appeal, and further that none had ever been delivered to the court.
No merit appearing the application for writ is denied and the proceeding dismissed.