ORIGINAL 01/09/2024

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0748

DA 23-0748

STATE OF MONTANA, Plaintiff and Appellant, v. ORDER RILED JONATHAN PARTAIN, JAN 0 9 2024 Defendant and Appellee. Bowen Greenwood Clerk of Supreme Court State of Montana

The State of Montana petitions for an out-of-time appeal from the November 20, 2023 Judgment of the Fourth Judicial District Court, Missoula County, in Cause No. DC-22-711. Defendant and Appellee Jonathan Partain objects to this motion. M. R. App. P. 4(6) provides, "In the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage ofjustice, the supreme court may grant an out- of-time appeal." Pertinent to the present matter, the State initially petitioned for writ of supervisory control in this case because it had concluded that it did not have the statutory right to appeal the District Court's ruling in this criminal matter. We denied the State's petition, concluding the State had a right to appeal the fmal judgment under § 46-20-103(2)(h), MCA. We further held the petition for writ of supervisory control was denied "without prejudice to the State's right to appeal the final judgment in Partain's criminal case." State v. Mont. Fourth Judicial Dist. Court, No. OP 23-0684, Order (Mont. Dec. 27, 2023). Partain's objection notwithstanding, it would be unjust for this Court, having denied the State's petition for writ on the basis that the state had a right to appeal, to deny the State the right to appeal. IT IS THEREFORE ORDERED that the petition for an out-of-time appeal is GRANTED.

IT IS FURTHER ORDERED that, on or before January 29, 2024, the State shall prepare, file, and serve a Notice of Appeal and a Request for Transcripts, if necessary, in compliance with the Montana Rules of Appellate Procedure. The Clerk is dirsKed to provide copies of this Order to all counsel of record. DATED this cl day of January, 2024.

Chie Justice

Justices