                                           No. 02-360

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 244N


DOUGLAS E. RYAN,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         District Court of the Second Judicial District,
                     In and for the County of Silver Bow,
                     The Honorable John W. Whelan, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Douglas E. Ryan, Pro Se, Shelby, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Jennifer Anders,
                     Assistant Attorney General, Helena, Montana

                     Robert McCarthy, Silver Bow County Attorney, Butte, Montana


                                                   Submitted on Briefs: October 10, 2002

                                                              Decided: November 7, 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    Douglas E. Ryan (Ryan) appeals from the order entered by the

Second Judicial District Court, Silver Bow County, denying his

motion for transcripts and the production of documents relating to

his underlying convictions.            We affirm.

¶3    The sole issue on appeal is whether the District Court erred

in denying Ryan’s motion.

                                     BACKGROUND

¶4    In August of 1999, the State of Montana (State) filed two

informations against Ryan, the first alleging he had committed the

felony offense of theft and the second alleging he had committed

the felony offenses of theft and criminal endangerment.                        Ryan

subsequently pleaded guilty to all three offenses.                  On January 13,

2000, the District Court sentenced Ryan to 10-year commitments to

the Department of Corrections on each count, with the sentences to

run concurrently.          On April 21, 2000, the court amended Ryan’s

sentences to three concurrent 10-year terms, with five years

suspended on each, and entered judgment on the convictions and

sentences.      Ryan did not appeal.

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¶5     In April of 2002, Ryan filed a motion with the District Court

requesting copies of transcripts and documents relating to his

underlying convictions.        In his motion, Ryan asserted he had made

numerous unsuccessful attempts to get the documents from both his

attorney and the Silver Bow County Attorney’s office.                   He further

contended the documents were necessary in order for him to prepare

a petition for postconviction relief alleging his convictions were

invalid on the bases that there was no evidence of the crimes

charged,    his   guilty     pleas    were   involuntary,       his    counsel   was

ineffective and the State withheld exculpatory evidence.                         The

District Court, noting that Ryan’s motion essentially challenged

the constitutional validity of his convictions, deemed the motion

to be a petition for postconviction relief and denied it as

untimely filed.      Ryan appeals.
                              STANDARD OF REVIEW

¶6     We   review   a    district    court’s     denial   of   a     petition   for

postconviction relief to determine whether the court’s findings of

fact are clearly erroneous and its conclusions of law correct.

State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, ¶ 9, 42 P.3d 753,

¶ 9.

                                     DISCUSSION

¶7     Did the District Court err in denying Ryan’s motion?

¶8     As stated above, the District Court deemed Ryan’s motion to be

one for postconviction relief and denied it on the basis it was

untimely filed.          In that regard, a petition for postconviction

relief must be filed within one year of the date a conviction



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becomes final.    Section 46-21-102(1), MCA.    A conviction becomes

final when, among other things, the time for appeal to this Court

expires.    Section 46-21-102(1)(a), MCA.    An appeal in a criminal

case must be filed within 60 days after entry of the judgment

appealed from.    Rule 5(b), M.R.App.P.   Here, the amended judgments

were filed on April 21, 2000, and Ryan’s convictions therefore

became final on June 20, 2000.    Ryan did not file his motion until

April of 2002, long after the one-year period in which to file a

petition for postconviction relief had run.
¶9     Ryan concedes that he did not file a postconviction relief

petition within the one-year period as required by § 46-21-102(1),

MCA.   He contends, however, that at all times during that period he

had been making diligent efforts to acquire the transcripts and

documents related to the underlying proceedings which he contends

were necessary before he could prepare and file such a petition.

He further contends it is only because the State, his attorney and

the District Court did not comply with his requests for the

documents that he was unable to file a petition within the one-year

period.    Essentially, Ryan argues that the statutory time limit on

filing a petition for postconviction relief should be equitably

tolled until he is able to acquire the information he asserts he

needs.

¶10    The one-year time period in which to file a postconviction

relief petition set forth in § 46-21-102, MCA, is a jurisdictional

limitation on litigation and may only be waived where the failure

to do so would result in a clear miscarriage of justice.    State v.



                                  4
Abe, 2001 MT 260, ¶ 15, 307 Mont. 233, ¶ 15, 37 P.3d 77, ¶ 15;

State v. Wells, 2001 MT 55, ¶ 10, 304 Mont. 329, ¶ 10, 21 P.3d 610,

¶ 10 (overruled on other grounds in State v. Whitehorn, 2002 MT 54,

¶ 42, 309 Mont. 63, ¶ 42, 43 P.3d 922, ¶ 42).         This miscarriage of

justice   exception   is    very   narrow,   and   applies   only   where   a

defendant alleges the existence of newly discovered evidence which

establishes that he or she did not commit the underlying offense.

Abe, ¶ 15; Wells, ¶ 10.      Ryan does not allege the existence of any

evidence showing he is innocent of the offenses for which he was

convicted.   Consequently, the miscarriage of justice exception does

not apply here.
¶11   We conclude Ryan’s petition for postconviction relief is

barred by the § 46-21-102(1), MCA, one-year limitation period.              We

hold, therefore, that the District Court did not err in denying

Ryan’s motion on that basis.

¶12   Affirmed.


                                               /S/ KARLA M. GRAY



We concur:


/S/   JAMES C. NELSON
/S/   TERRY N. TRIEWEILER
/S/   PATRICIA COTTER
/S/   JIM RICE




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