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323 Mont. 347

Peña v. State

Montana Supreme Court

Decided October 21, 2004

Montana Supreme Court · decided 2004-10-21

Key passage — most relied on by later courts

“¶ 41 If, as the Court concludes, the statute is jurisdictional, then it would be absolute in its application since it is axiomatic that subject matter jurisdiction can never be waived. See In re Marriage of Miller (1993), 259 Mont. 424, 427 , 856 P.2d 1378, 1380 . Unlike a jurisdictional bar, this statute is subject to exceptions and to waiver. There is a statutory exception for a”

quoted by 1 later decision, including Pena v. State

“State v. Redcrow, 1999 MT 95, ¶ 34 , 294 Mont. 252, ¶ 34 , 980 P.2d 622, ¶ 34 . Other than correctly pointing out that neither exception applies here because Peña does not make a claim that he is actually or legally innocent, the Court fails to discuss the inconsistency of holding that a statutory bar which is subject to exceptions or to waiver is, nonetheless,”

quoted by 1 later decision, including Pena v. State

Relies on Calderon v. United States District Court · State v. Redcrow · In Re the Marriage of Miller

Good law ✅— No negative treatment on recordhow we know

Decided 2004-10-21

How this case has been cited

Cited by 28 later decisions — most recently May 2021 · most notably Stanley v. Lemire (2006), Lorang v. Fortis Insurance (2008)

28 state decisions

210200420102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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JUSTICE LEAPHART

¶1concurring and dissenting.

¶2¶40 Although I concur in the result, I dissent as to the Court’s conclusion that the time bar of § 46-21-102, MCA, is jurisdictional in nature. Section 46-21-102, MCA, is, I believe, a statute of limitations. We recognized such in Morrison v. Mahoney, 2002 MT 21, ¶ 11, 308 Mont. 196, ¶ 11, 41 P.3d 320, ¶ 11, and State v. Placzkiewicz, 2001 MT 254, ¶ 11, 307 Mont. 189, ¶ 11, 36 P.3d 934, ¶ 11, where we characterized this statute as a “statute of limitations.”

¶3¶41 If, as the Court concludes, the statute is jurisdictional, then it would be absolute in its application since it is axiomatic that subject matter jurisdiction can never be waived. See In re Marriage of Miller (1993), 259 Mont. 424, 427, 856 P.2d 1378, 1380. Unlike a jurisdictional bar, this statute is subject to exceptions and to waiver. There is a statutory exception for a “newly discovered evidence” claim. Section 46-21-102(2), MCA. We have interpreted this exception as encompassing petitions which allege that the defendant is “legally *363innocent.” See State v. Pope, 2003 MT 330, 318 Mont. 383, 80 P.3d 1232. We have also held that waiver of the time bar is justified by a “clear miscarriage of justice.” State v. Redcrow, 1999 MT 95, ¶ 34, 294 Mont. 252, ¶ 34, 980 P.2d 622, ¶ 34. Other than correctly pointing out that neither exception applies here because Peña does not make a claim that he is actually or legally innocent, the Court fails to discuss the inconsistency of holding that a statutory bar which is subject to exceptions or to waiver is, nonetheless, “jurisdictional.” As noted above, jurisdiction is absolute and cannot be waived.

¶4¶42 Section 46-21-102, MCA, does not mention “jurisdiction.” I would interpret this statute as the federal courts have interpreted the one-year period for filing a petition for a writ of habeas corpus-that is, the one-year period is not a jurisdictional bar, but rather, a statute of limitations. See, e.g., Calderon v. U. S. Dist. Court (9th Cir. 1997), 128 F.3d 1283, 1288-89.

¶5¶43 As a statute of limitations, § 46-21-102, MCA, is subject to waiver. Thus, when the State did not raise the statutory bar as a defense in the District Court, it waived the issue and is now precluded from raising the issue on appeal. Rule 8(c), M.R.Civ.P.; and Marias Healthcare Servs. v. Turenne, 2001 MT 127, ¶ 9, 305 Mont. 419, ¶ 9, 28 P.3d 491, ¶ 9.

¶6¶44 However, even assuming that the State waived the time bar of § 46-21-102, MCA, Peña’s claim is still procedurally barred by § 46-21-105(2), MCA, since he could have challenged the legality of his sentence on direct appeal from the original judgment but did not. Accordingly, I concur in the result reached by the Court.

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