                                           No. 02-136

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 219N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ROBERT G. HORNBACK,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Nineteenth Judicial District,
                     In and for the County of Lincoln,
                     The Honorable Douglas G. Harkin, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Robert G. Hornback, Pro Se

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Cregg Coughlin,
                     Assistant Attorney General, Helena, Montana

                     Bernie Cassidy, Lincoln County Attorney, Libby, Montana


                                           Submitted on Briefs: July 18, 2002

                                                                 Decided: September 24, 2002
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1996 Internal Operating Rules, the following decision shall not be

cited as precedent but shall be filed as a public document with the

Clerk of the Supreme Court and shall be reported by case title,

Supreme    Court    cause     number    and    result    to   the   State   Reporter

Publishing Company and to West Group in the quarterly table of

noncitable cases issued by this Court.
¶2    Robert Hornback appeals from a decision of the Nineteenth

Judicial District Court, Lincoln County, denying his motion for

permission to file an out-of-time appeal.                 We affirm.

                                     BACKGROUND

¶3    In 1988, Robert Hornback pled guilty to deliberate homicide in

the death of an eight-year-old boy.              Pursuant to a plea agreement,

he was sentenced to 100 years at the Montana State Prison and

declared parole ineligible for 17½ years.                He also was designated a

persistent felony offender, sentenced to an additional 100 years,

and declared parole ineligible for an additional 17½ years.                     The

sentencing court expressly stated the 100-year sentences were to be

served consecutively and Hornback was “not to be released on

parole, under any condition, in less than thirty-five years.”

Hornback did not appeal.
¶4    Hornback subsequently filed actions in this Court in 1988 and

1990, the latter a petition for postconviction relief.                  Neither was

successful.      He later filed habeas corpus actions in federal court

and in the Third Judicial District Court, Powell County.                        The

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federal action was stayed and the state habeas proceeding was

denied.   Hornback also had filed a petition for postconviction

relief in the Nineteenth Judicial District Court, Lincoln County.

The District Court stayed that proceeding until 2000 when, at

Hornback’s request, it was converted to a “Motion to Correct

Sentence.”    The District Court denied Hornback’s motions on October

16, 2000, and he did not appeal.

¶5   On November 6, 2001, Hornback moved the District Court               for

permission to file an out-of-time appeal from its denial of his

“Motion to Correct Sentence.”       The District Court denied the motion

as untimely and Hornback appeals.
                                 DISCUSSION

¶6   In denying Hornback’s motion for permission to file an out-of-

time appeal, the District Court concluded the motion was time-

barred.      We   review   a   district   court’s   legal   conclusions   to

determine whether they are correct.        State v. Bromgard (1995), 273

Mont. 20, 23, 901 P.2d 611, 613.

¶7   Subsections (a) and (b) of Rule 5, M.R.App.P., both require

that an appeal be taken within 60 days of the judgment or order at

issue where, as here, the State of Montana is a party.          A district

court’s authority to extend the time for filing a notice of appeal

is limited. Pursuant to Rule 5(c), M.R.App.P., an extension may be

granted only on “a showing of excusable neglect or good cause” via

a “motion filed not later than 30 days after the expiration of the

time prescribed by Rule 5(a) for civil cases and Rule 5(b) for

criminal cases.”     The net result of these rules is that a district



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court is without authority to grant a motion for extension of time

to appeal more than 90 days after the judgment or order at issue is

entered.    See State v. Garner, 1999 MT 295, ¶ 29, 297 Mont. 89, ¶

29, 990 P.2d 175, ¶ 29.

¶8    Here, Hornback filed his motion requesting permission to file

an out-of-time appeal   more than a year after the District Court’s

order denying his motion to correct his sentence.         We hold,

therefore, that the District Court did not err in concluding the

motion was time-barred and in denying it as untimely.
¶9    Affirmed.

                                          /S/ KARLA M. GRAY




We concur:


/S/   PATRICIA COTTER
/S/   JIM REGNIER
/S/   TERRY N. TRIEWEILER
/S/   W. WILLIAM LEAPHART




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