An appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant.

A final judgment essentially means conviction. Generally, if a person is found not-guilty there is little reason to appeal. The rule also covers orders which affect the substantial rights of the defendant. In these cases, you don’t need to wait until the completion of trial to file the appeal.

The Montana Rules of Appellate Procedure require that such an appeal be taken within 60 days after entry of the judgment which is the basis for the appeal. This is an important, and hard deadline. Although the rules allow for out-of-time appeals, they are only to be granted “in the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice.” M.R.App.P. 6. File your appeal on time. If you plan on hiring an appellate attorney, contact him quickly – ideally before the trial has concluded. You should never plan on being granted an extension on your appeal.

The appeal is initiated by filing a notice of appeal with the Clerk of the Supreme Court in Helena. A copy of the notice must be filed with the Clerk of the District Court where the case originated and on all parties. This is a relatively simple step which can be accomplished fairly quickly once the decision to appeal has been made. All the more reason to comply with the time limits.

At sentencing, the District Court made Shepard ineligible for parole, which resulted in Shepard petitioning to the Sentence Review Division. At the sentence review hearing, the State appeared, contradicted the factual background given by Shepard and opposed her request that the parole restriction be removed from her sentence.

Over a year later, Shepard filed a motion to withdraw her guilty pleas, asserting that the State’s statements at the sentence review constituted breach of the plea agreement. The District Court denied the motion and Shepard appealed.

On appeal, the Montana Supreme Court initially addressed the issue of the proper standard of review, deciding that because a plea agreement is a contract and subject to contract law standards, State v. Hill, 2009 MT 137, ¶ 49, it is a question of law and reviewed de novo.

As to the merits of the appeal, SCOMONT ruled that although a plea agreement could be negotiated in such a way to restrict the State’s actions before the Sentence Review Division or otherwise impose continuing obligations on the State, the agreement at issue here did not. The Court ruled that “the plea agreement was drafted to unambiguously apply to the sentencing process before the District Court and that court’s disposition of the case. It did not contemplate later proceedings, and thus, the State did not violate an express provision of the plea agreement.” ¶ 14.

SCOMONT also noted that the State could, theoretically, have undermined, and therefore violated, the plea agreement by arguing for a different or harsher sentence before the Sentence Review Division. However, the Court believed that this was not the case here and affirmed the District Court.

After pulling her over, the trooper told Cooper that the reason he had initiated the stop was because snow obstructed the view of her license plate. However, he testified to many other factors including that:

• he pickup truck did not come to a stop before entering the highway, but “abruptly” pulled out onto the highway in front of Kloster, forcing him to take evasive action to avoid a possible crash;
• Cooper crossed the fog line and performed a U-turn; and
• Cooper was driving incredibly slowly

SCOMOT ruled that “[the trooper’s] articulable facts included his observation of Cooper’s truck pulling into oncoming traffic, nearly causing a collision; Cooper leaving the parking lot of a bar hosting a special event known to serve alcohol; Cooper driving incredibly slow; and Cooper’s truck traveling over the fog line.” This justified a particularized suspicion and legitimized the stop making the evidence obtained admissible.

Justice Nelson concurred to note that the obscured license plate alone would not have justified sufficient particularized suspicion for detaining Cooper. Nelson argued that snow obscuring a plate is not sufficient to justify a traffic stop in Montana during the winter, arguing that reading MCA § 61-3-301(1)(a) in this fashion would produce an absurd result and, therefore, should be avoided. However, given the additional reasons for the stop, Nelson concurred.