                                                                                         July 18 2012
                                           DA 12-0109

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2012 MT 153N



MICHAEL JEFFREY ANDERSON,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Eighteenth Judicial District,
                       In and For the County of Gallatin, Cause No. DV 11-577C
                       Honorable John C. Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Michael Jeffrey Anderson, self-represented; Sheridan, Oregon

                For Appellee:

                       Steve Bullock, Montana Attorney General; Katie F. Schulz,
                       Assistant Attorney General; Helena, Montana

                       Marty Lambert, Gallatin County Attorney; Eric N. Kitzmiller,
                       Deputy County Attorney; Bozeman, Montana



                                                    Submitted on Briefs: June 27, 2012

                                                                Decided: July 18, 2012


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules,

this case is decided by memorandum opinion and shall not be cited and does not serve as

precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly

list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Michael Jeffrey Anderson appeals from the District Court’s denial of his petition for

postconviction relief. Anderson was convicted, after a trial by jury, of felony assault with a

weapon, misdemeanor partner family member assault, and misdemeanor assault. He appealed,

and this Court remanded the matter to the District Court to strike an alcohol condition from

Anderson’s sentence but otherwise affirmed his conviction. State v. Anderson, 2010 MT 17N, ¶

7. Our opinion was issued on February 2, 2010.

¶3     Anderson filed a petition for postconviction relief with supporting affidavit and

memorandum and a request for waiver of the filing fee on June 14, 2011. On June 27, the

District Court entered an order of dismissal, stating:

       Mr. Anderson failed to file an original, sworn Affidavit supporting the Petition,
       and his Petition is not verified. Neither the Affidavit nor the Petition were dated
       and signed before a notary. Also, the Petition, Memorandum and Affidavit are
       photocopies instead of the original, signed document. Therefore, Mr. Anderson’s
       request for postconviction relief is fatally defective for failure to comply with §§
       46-21-103 and -104, MCA, requiring the filing of a verified petition.

¶4     On September 6, 2011, Anderson filed a motion for reconsideration and filed a new set of

postconviction pleadings in the District Court. After receiving the State’s response, the District

Court issued an order dismissing the petition on December 9, 2011. The court reasoned that,

even assuming that Anderson’s June 14 filing was valid, his petition was untimely. Anderson’s

case became final on May 3, 2010, and he had until May 3, 2011, to file a petition for


                                                  2
postconviction relief, but he failed to do so. Anderson filed a notice of appeal to this Court on

February 10, 2012.

¶5     Anderson argues that his petition was delivered to the Clerk of the District Court by a

friend in April, 2011, before the filing deadline, which he believed was May 2, 2011. He asserts

he did not receive due process. However, Anderson’s failure to submit a filing fee or obtain a

fee waiver when originally submitting his documents to the Clerk of the District Court required

that his documents be returned. The documents he then filed on June 14, 2011, were not only

untimely, but also improper and subjected his petition to dismissal for failure to comply with

statutory requirements. In the end, he did not file a proper petition until September 6, 2011, long

after the filing period had lapsed.

¶6     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The issues in

this case are legal and are controlled by settled Montana law, which the District Court correctly

interpreted. Anderson’s petition was barred as untimely and properly dismissed.

¶7     Affirmed.



                                                             /S/ JIM RICE

We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ BRIAN MORRIS




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