               IN THE SUPREME COURT OF THE STATE OF MONT

                                        NO.93-176

                                        1998 MT 255




              Petitioner,                                          OPINION
                                                                      and
       v.                                                           ORDER

STATE OF MONTANA,

              Respondent,


71     Kristofer Hans (Hans) moves this Court to reconsider its July 14, 1998 order, denying

his second amended petition for postconviction relief. The State of Montana has responded.

The controlling issue before this Court is whether Hans' motion for reconsideration is barred

by Rule 34, M.R.App.P.

                            Factual and Procedural Background

72     Hans was sentenced to two terms of 100 years plus 3 years for the use of a weapon

and two terms of 10 years plus 2 years for the use of a weapon, to be served concurrently,

in June, 1988. His original counsel, Bradley Parrish (Parrish), filed a notice of appeal, but

the notice was subsequently withdrawn. Hans filed apro se petition for postconviction relief

as an original proceeding with this Court on April 12, 1993. This Court appointed counsel

from Montana's Appellate Defender Office to represent Hans, and an amended petition for
postconviction relief was filed on November 17, 1993. On August 25, 1994 this Court

entered an order denying two of Hans' claims, remanding his allegations of ineffective

assistance of counsel for an evidentiary hearing and findings of fact and conclusions of law,

and reserving its ruling on the remaining issues. The District Court held a hearing in

November, 1994 and entered findings of fact and conclusions of law on November 21, 1996,

concluding that Hans' counsel had not been ineffective except in his failure to preserve Hans'

right to appeal. On July 2, 1997 this Court entered an opinion and order denying Hans' other

claims but granting him leave to amend his petition to address claims that were foreclosed

from review because of counsel's failure to pursue a direct appeal. Hans v. State (1997), 283

Mont. 379, 410, 942 P.2d 674, 693. In September, 1997 Hans filed a second amended

petition. The State filed a motion to dismiss Hans' petition or to strike his claims. In

January, 1998 this Court entered an opinion and order granting the State's motion to strike

one of Hans' claims but holding that Hans' other claims were properly raised and that this

Court would review them. Petition of Hans, 1998 MT 7,958 P.2d 1175, 55 St.Rep. 21. In

July, 1998 this Court entered its order denying Hans' second amended petition for

postconviction relief.

73     Hans and the State dispute whether Rule 6O(b), M.R.Civ.P., applies in the present

case. Hans contends that this Court may review his motion for reconsideration under the

"reasonable time" limitation set forth in Rule 6O(b), M.R.Civ.P. The State responds that
Hans' motion is in essence a petition for rehearing of an original proceeding that commenced

with this Court and that the petition is therefore governed by Rule 17(b), M.R.App.P., and

Rule 34, M.R.App.P. The State argues further that under Rule 34, M.R.App.P., Hans'

petition for rehearing was not timely. Rule 34 provides in pertinent part:

       When, in appeals or special proceedings, it is ordered that remittitur,
       peremptory writ or judgment issue forthwith, no petition for rehearing will be
       entertained. In all other cases a petition for rehearing may be filed within 10
       days after the decision of the supreme court has been rendered, unless the time
       is shortened or enlarged by order, and the adverse party shall have 7 days
       thereafter in which to serve and file objections thereto. Extensions of time will
       be granted only upon showing of unusual merit, and in no event in excess of
       10 days.

Rule 34, M.R.App.P. (emphasis added). We conclude that Hans' motion for reconsideration

is in essence a petition for rehearing of an original proceeding that began in this Court in

1993. We hold that Rule 34, M.R.App.P., governs petitions for rehearing of proceedings for

postconviction relief that originate with this Court.

14       Hans' motion for reconsideration is not timely under Rule 34, M.R.App.P. This

Court denied Hans' amended petition for postconviction relief on July 14, 1998. Hans filed

his motion for reconsideration of our order on July 31, 1998, more than ten days after we

entered our order. Because Hans' motion for reconsideration was untimely under Rule 34,

M.R.App.P., we do not address the other issues that Hans has raised.

75     Based on the foregoing,

76     IT IS ORDERED that Hans' motion for reconsideration is DENIED with prejudice.
117    The Clerk is DIRECTED to mail a copy of this order to William F. Hooks, Hans'

counsel of record, and to counsel for the State.
                       *$
       DATED this&       aay of October, 1998.




                                                          Justices
