Mont. Code Ann. » TITLE 46. CRIMINAL PROCEDURE · CHAPTER 8. RIGHT TO COUNSEL · Part 1. Extent of Right -- Indigency Repayment of Costs
Montana Code Annotated

Mont. Code Ann. § 46-8-104 (2026)

Assignment Of Counsel After Trial -- Definition

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 46
  3. CHAPTER 8
  4. Part 1
  5. 46-8-104 Assignment of counsel after trial -- definition

TITLE 46. CRIMINAL PROCEDURE

CHAPTER 8. RIGHT TO COUNSEL

Part 1. Extent of Right -- Indigency Repayment of Costs

Assignment Of Counsel After Trial -- Definition

46-8-104. Assignment of counsel after trial -- definition. (1) Any court of record may order the office of state public defender, provided for in 2-15-1029, to assign counsel, subject to the provisions of the Montana Public Defender Act, Title 47, chapter 1, to represent any petitioner or appellant in any postconviction action or proceeding brought under Title 46, chapter 21, if the petitioner or appellant is eligible for the appointment of counsel and:

(a) the district court determines that a hearing on the petition is required pursuant to 46-21-201;

(b) the office of state public defender requests appointment of a public defender and demonstrates good cause for the appointment;

(c) a statute specifically mandates the appointment of counsel;

(d) the petitioner or appellant is clearly entitled to counsel under either the United States or Montana constitution; or

(e) extraordinary circumstances exist that require the appointment of counsel to prevent a miscarriage of justice.

(2) An appointment of counsel made in the interests of justice, as provided in 46-21-201(2), may be made only when extraordinary circumstances exist.

(3) As used in this section, "extraordinary circumstances" includes those in which the petitioner or appellant does not have access to legal materials or has a physical or mental condition or limitation that prevents the petitioner or appellant from reading or writing in English.

History: En. 95-1004 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-1004; amd. Sec. 41, Ch. 449, L. 2005; amd. Sec. 1, Ch. 417, L. 2007; amd. Sec. 15, Ch. 358, L. 2017.

Notes of Decisions
Cited in 88 cases (63 in the last 5 years), 1982–2025 · leading case: State v. Dillard, 2006 MT 328 (Mont. 2006).
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State v. Dillard, 2006 MT 328 (Mont. 2006). · cites it 16× “¶7 Dillard next cites to § 46-8-104, MCA. This statute, also effective July 1, 2006, provides: Any court of record may order the office of state public defender, provided for in 47-1-201, to assign counsel, subject to the provisions of the Montana Public Defender Act, Title 47,…”
State v. Ellison, 2012 MT 50 (Mont. 2012). · cites it 2× “” Thus, having either missed or declined his opportunity to move for a new trial at Justice Court, Ellison was required to appeal to the District Court as he did.”
Swearingen v. State, 2001 MT 10 (Mont. 2001). · cites it 6× “In making this argument, the State urges that we read § 46-21-201(2), MCA (1997), and § 46-8-104, MCA (1997), together. This latter statute provides that the court may assign counsel to defend any petitioner in any postconviction proceeding if he desires counsel and is unable to…”
State v. Lange, 733 P.2d 846 (Mont. 1987). · cites it 9× “As to the duration of the appointment, Section 46-8-103 and Section 46-8-104, MCA, state as follows: “46-8-103.”
State v. Craig, 906 P.2d 683 (Mont. 1995). · cites it 2× “Pursuant to § 46-8-104, MCA, Craig asked the court to appoint new counsel “for the purposes of preparing and filing a motion for a new trial on his behalf and to represent him throughout these criminal proceedings which remain pending in the above-entitled action.”
State v. Woods, 951 P.2d 981 (Mont. 1997). · cites it 8× “On December 17,1996, Appellant filed a notice of appeal from the District Court’s order and also requested that this Court appoint counsel to represent him in presenting his appeal.”
Davis v. State, 2007 MT 207 (Mont. 2007). · cites it 14× “He points out that, in his motion, he requested counsel be appointed pursuant to § 46-8-104, MCA, and that this statute does not require that a formal postconviction relief petition be filed before counsel may be appointed.”
State v. Fry, 642 P.2d 1053 (Mont. 1982). · cites it 3× “Section 46-8-104, MCA (court may appoint counsel in any post-conviction proceeding), and 46-8-111, MCA (court shall receive a verified financial statement in order to determine indigency); Petition of Kelly, supra.”
Off. of State Pub. Def. v. Montana Thirteenth Jud. Dist., 2007 MT 333 (Mont. 2007). · cites it 5× “There is no provision in § 46-8-104, MCA, allowing district courts to appoint counsel employed by the Office of the State Public Defender in advance of the filing of a petition for postconviction relief.”
Gardipee v. Salmonsen (Mont. 2020). · cites it 5× “There is no right to the appointrnent of counsel in a proceeding for postconviction relief, although a court may order the assignment of counsel under the specific criteria outlined in § 46-8-104(1), MCA. Gardipee has not demonstrated any extraordinary circumstances to justify…”
Bagnell v. State (Mont. 2022). · cites it 5× “There is no right to the appointment of counsel in a postconviction proceeding for relief, although a court may order the assignment of counsel under the circumstances outlined in § 46-8-104, MCA. Bagnell represented himself in his postconviction proceeding.”
Lopez v. State, 2007 MT 193N (Mont. 2007). · cites it 3× “The District Court denied the motion, concluding that Lopez had failed to identify any basis supporting a claim for postconviction relief and that any postconviction petition raising claims related to Lopez’s underlying convictions would be untimely.”
Show all 88 citing cases →
Mont. Code Ann. § 46-8-104(1): 4 cases
Off. of State Pub. Def. v. Montana Thirteenth Jud. Dist., 2007 MT 333 (Mont. 2007). “There is no provision in § 46-8-104, MCA, allowing district courts to appoint counsel employed by the Office of the State Public Defender in advance of the filing of a petition for postconviction relief.”
J. Mulligan v. State (Mont. 2021).
Gardipee v. Salmonsen (Mont. 2020). “There is no right to the appointrnent of counsel in a proceeding for postconviction relief, although a court may order the assignment of counsel under the specific criteria outlined in § 46-8-104(1), MCA. Gardipee has not demonstrated any extraordinary circumstances to justify…”
J. Witkowski v. State (Mont. 2021).
Mont. Code Ann. § 46-8-104(1)(d): 9 cases
State v. M. Cameron (Mont. 2020).
State v. W. McCaulou (Mont. 2020).
State v. J. Idland (Mont. 2023).
State v. M. Mendoza (Mont. 2021).
Killam v. Salmonsen (Mont. 2021).
Mont. Code Ann. § 46-8-104(1)(e): 3 cases
Gardipee v. Salmonsen (Mont. 2020). “There is no right to the appointrnent of counsel in a proceeding for postconviction relief, although a court may order the assignment of counsel under the specific criteria outlined in § 46-8-104(1), MCA. Gardipee has not demonstrated any extraordinary circumstances to justify…”
Peterson v. State (Mont. 2020).
Standley v. State (Mont. 2022).
Mont. Code Ann. § 46-8-104(2): 2 cases
Gerald Stiffam v. State, 2012 MT 197N (Mont. 2012).
Larson v. State, 2017 MT 271N (Mont. 2017).
Mont. Code Ann. § 46-8-104(3): 24 cases
Nickerson v. State (Mont. 2020).
Pray-Davis v. Guyer (Mont. 2020).
Peterson v. State (Mont. 2020).
State v. M. Albert (Mont. 2021).
R. Matta v. State (Mont. 2021).
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