                                   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
                                                                                    3
                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
                                                                                 4
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.
