                            No.    95-253

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995



SHERMAN P. HAWKINS,
          Petitioner and Appellant,
     v.
JANET COX, DAN RUSSELL, JAMES OBIE,                          j, .,.>r: J$#&gfk
                                                %:.l;:ri-:.. Li' *ipltEME couw>
JACK MCCORMICK, STATE OF MONTANA, ET AL.,                  STATE OF MONT*m
          Respondents and Respondents.



APPEAL FROM:   District Court of the Third Judicial District,
               In and for the County of Powell,
               The Honorable Ted Mizner, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Sherman P. Hawkins, Pro Se,
               Deer Lodge, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Helena, Montana
               David L. Ohler and Lois Adams, Special
               Assistant Attorneys General, Department
               of Corrections, Helena, Montana




                            Submitted on Briefs:          November 9, 1995
                                            Decided:      December 12, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
        Pursuant to Section        I,   Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result     to   State   Reporter    Publishing   Company   and    West   Publishing

Company.

        The appellant, Sherman Hawkins, filed a motion for a new trial
in the District Court for the Third Judicial District in Powell

County based on his allegation that false testimony had been given

by Janet Cox at his previous trial.              Hawkins' motion alleged that

Cox's    misrepresentations        constituted   fraud   upon    the   court.   The

District Court denied the motion for new trial.                    We affirm the

order of the District Court.

        The issue on appeal is:

        Did the District Court abuse its discretion when it denied

Hawkins'    motion for a new trial?

                              FACTUAL      BACKGROUND

        On September 28, 1973, Hawkins was sentenced to the Montana

State Prison for life following his conviction of murder in the

first degree.       He was released on work furlough in January 1984.

In February 1987, his furlough was revoked because of an incident

which led to his conviction of assault, and criminal possession of

dangerous drugs.        He received sentences of twenty-two and fifteen

years for those convictions.




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     In 1991, Hawkins filed a complaint in district court in which
he alleged he had been given inadequate credit for time served and
that his good time had been incorrectly calculated.                      Hawkins
alleged that the State had "refused to apply the 464 days of jail
time [served prior to his convictions] to either of the sentences
imposed    by    the    sentencing   court."     He claimed that his parole

eligibility date was not correct because of this error.
     On March 4,          1993,   after an evidentiary proceeding and a
rehearing,      the District Court issued an order in which it granted
the State's motion for summary judgment and determined that Hawkins
had been granted all the good time to which he was entitled and had
received proper credit for the days he was incarcerated prior to
his conviction and sentencing.          Hawkins then appealed that order to
this Court.      We affirmed the order in a nonpublished opinion dated
August 17, 1993.
     On March 16, 1995, Hawkins filed a "Motion for New Hearing or
New Trial Because of Fraud Upon the Court." Hawkins' motion, based
on the residual clause of Rule 60(b), M.R.Civ.P., alleged that
Janet M. Cox,          Records Supervisor at the Montana State Prison,
misrepresented facts to the court at the 1991 trial of his original
petition and miscalculated the good            time   to which he claims he was
entitled.       Specifically, Hawkins contends that a calculation error
in the Initial Parole Report documents his claim that Cox testified
falsely.
     The State's response included an affidavit from Ms. Cox which
denied many of Hawkins' allegations.                    In addition,   the State

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contends that Ms. Cox's alleged actions, even if true, do not
constitute the extrinsic fraud which is necessary to satisfy the
residual clause of Rule 60, M.R.Civ.P.
     On April 25, 1995, the District Court denied Hawkins' motion
for a new trial based on its conclusion that it was without factual
or legal foundation.
                                DISCUSSION
     Did the District Court abuse its discretion when it denied
Hawkins' motion for a new trial.
     We review a district court's denial of a motion for a new
trial to determine whether the court abused its discretion. See            State

v.Mummey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870.

     Hawkins alleges that he is entitled to a new trial because of
fraud upon the court.       The original order which resolved Hawkins'
complaint was entered on March 4, 1993.           Hawkins waived notice of
entry of judgment by filing his notice of appeal from that judgment
on March 16, 1993.        A party is allowed 60 days after service of
notice of entry of judgment to file a motion for relief from that
judgment pursuant to Rules 60(b) (l)-(3), M.R.Civ.P., for newly
discovered    evidence,   mistake,   fraud,    misrepresentation,   or   other
misconduct.    In this case, that     time   period commenced no later than
March 16, 1993.      These grounds for relief are, therefore, time-
barred because Hawkins' motion was not filed until March 16, 1995,
two years after his notice of appeal to this Court.
     Rule 60(b), M.R.Civ.P., does contain a residual clause which
provides:
         This rule does not limit the power of a                           court to
         entertain an independent action to relieve a                     party from
         a judgment, order, or proceeding, or to grant                     relief to
         a defendant not actually personally notified                     as may be
         required by law, or to set aside a judgment                       for fraud
         upon the court.

       We have held that the fraud contemplated in the residual

clause     is     extrinsic        or   collateral   fraud,      rather   than   intrinsic

fraud,     and therefore, is a narrower species of fraud than the type

of fraud referred to in Rule 60(b) (3), M.R.Civ.P.                           Salway   v. Arkuva


(1985),     215   Mont. 135, 140, 695 P.2d 1302, 1306; Brownv.Small                   (19921,

251 Mont.         414,    420,      825   P.2d   1209,   1213.      The difference is

important because to hold that the type of fraud denominated in the

residual clause of Rule 60(b) is equivalent to that envisioned by
subsection (b) (3) would render the time limitations imposed in

Rule 60 meaningless.               Salway, 695 P.2d at 1306.

         Extrinsic fraud is defined as fraud that has prevented the

unsuccessful party from presenting his or her case.                         Marriage of Lance

(1981),      195 Mont. 176, 179-80, 635 P.2d 571, 574; see Salway, 695

P.2d at 1306.            Extrinsic fraud is collateral to the matters tried

by the court and is not fraud in the matters on which the judgment

was    rendered.         Brownv.    Jensen (1988), 231 Mont. 340, 346, 753 P.2d

870,     874 ; Salway,     695 P.2d at 1306.         We have repeatedly held that

neither perjured testimony nor false or fraudulent allegations used

to obtain a judgment constitute extrinsic fraud.                          Jensen, 7 5 3 P.2d

at 875; Salway, 695 P.2d at 1307; Pihtiv.Pikzti (19791, 181 Mont. 182,

190. 592 P.2d 1374, 1377-78.                 The principle is that during a trial,


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veracity itself is at issue, and in the public's interest cannot be

tried again later.    Pilati,   592 P.2d at 1379.

     It is apparent that none of Hawkins' allegations, even if

accepted as true,    constitute extrinsic fraud.             He simply alleges

that Janet Cox gave perjured testimony.             However,    Cox's   truthful-

ness was one of the issues directly considered at the original

trial, and therefore, is not collateral to the action.

     Accordingly, we        conclude       that   Hawkins'     allegations    are
insufficient for relief based on extrinsic                   fraud pursuant to

Rule 60(b), M.R.Civ.P.

     Because Hawkins is unable to demonstrate extrinsic fraud, we

hold that the District Court did not abuse its discretion when it

denied Hawkins' motion for a new hearing.




     Chief Justice




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