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We remand for such further proceedings as are necessary in the light of this opinion and the facts found by the District Court.

Zavarelli, Mont. In that situation, when there is nothing in the terms of the mandate to prevent it, the trial court has the power, on reconsideration, to find the same facts and change its holding, or to find different facts consistent with its original holding. The District Court was free to conclude that a mutual mistake had been made because its previous judgment had been reversed in its entirety.

Instead, similar to our holding in Haines Pipeline Constr. We then remanded for the sole purpose of reconsidering Clark's motion for retrial. In other words, ours was not a wholesale reversal of the District Court's judgment, but was a limited reversal and remand. As such, the District Court did not have jurisdiction to reconsider its entire judgment or sentence, because that issue had been settled by this Court and had become the law of the case, which demanded that Clark's conviction and sentence stand as rendered by the District Court and affirmed on Clark's first appeal.

Just as we did in Haines Pipeline Constr. See also State v. O'Shea, N.

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I dissent from the Court's decision to address and resolve the second issue. I would address the scope of remand question sua sponte and conclude that the District Court exceeded the scope of our remand-and, therefore, its power-by entertaining and resolving the sentencing matter as part of the proceeding on remand. As a result, I would hold the second issue is not properly before us.


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I write separately to address the scope of remand issue in more detail. See Mont. We ultimately affirmed the judgment of conviction. We also clarified one aspect of the law relating to motions for new trial, but we could not determine whether or not the trial court had correctly applied the law in denying the motion for new trial. Obviously, the further consistent proceedings could only include the previously-and expressly-stated reconsideration of the motion for new trial. He asserted that there was an abuse of discretion in the sentence originally imposed.

The District Court entertained the issue, and resolved it in the State's favor. In my view, given the carefully limited power we returned to the District Court on remand, that court did not have the power or authority to consider the sentencing issue at all. State ex rel. Olson v. District Court, Mont.

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Marriage of Sarsfield, Mont. That remand, in my view, put mandatory constraints on the trial court's power and authority to act on remand.

The District Court in the present case did follow our directive regarding the motion for new trial, and I join the Court in affirming that decision in issue one. Long after the District Court had met its obligation on remand, Clark moved to amend the years' old Judgment and Commitment. The District Court's action in entertaining and resolving that motion constituted error in that the court exceeded the scope of our remand.

In my view, a trial court which does more than it was empowered to do on remand ignores our directives and is inconsistent with our instructions every bit as much as a trial court which does less or which otherwise acts differently from our remand instructions. Indeed, this is particularly true where that court is already constrained by this Court's remand. Some also might contend that the scope of remand is neither an important question nor one which this Court should notice sua sponte. I would strongly disagree.

Leaving the determination of a trial court's authority to act on remand to a party to raise seems simply injudicious. I believe this Court must be much more watchful than that of its authority, and of the power and authority of trial courts. Furthermore, such an approach would leave the timely finality of cases to counsel's watchful eye. Given our longstanding jurisprudence about the importance of the finality of cases, this strikes me as most unwise.

Tipp v. I would respond that there are a variety of statutory methods of challenging allegedly illegal sentences, including-but not necessarily limited to-direct appeal and postconviction relief via a claim of ineffective assistance of counsel. In addition, habeas corpus relief is available to an incarcerated person wishing to challenge the legality of the duration of confinement. Here, Clark does not assert that his original sentence was illegal or, indeed, that the sentence he now is being allowed to appeal is illegal.

He merely asserts that the sentencing court abused its discretion in resentencing him. In that regard, if the challenge is to a sentence asserted to be objectionable, but not illegal, I cannot imagine the basis on which either the trial court or this Court could consider it at this very late date. To avoid this additional problem, the Court simply concludes the sentence is illegal, and constructs a new analysis never advanced by Clark.

Therefore, I join the Court's opinion on issue one, but strenuously dissent from the Court's opinion on issue two. I would hold that the District Court exceeded its authority on remand in considering the sentencing claim and that Clark has readily available options to challenge the sentence in the event he or his seasoned counsel believe it is illegal.

Sex-abuse civil trial to unveil Boy Scout 'perversion' files | CTV News

Justice Morris made essentially this same observation for the Court in Davis v. By submitting this form, you agree to FindLaw. We respect your privacy. Thank you for subscribing! Explore Resources For Practice Management. Legal Technology. Corporate Counsel.

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STATE v. Reset A A Font size: Print. Supreme Court of Montana. DA With respect to a district court's evaluation of recantations under this factor, we specifically stated as follows: In the context of recantations, for example, nothing in our decision today negates the concerns we expressed in [State v. This statute reads in pertinent part as follows: Sexual assault.

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Section 1 through 3 , MCA emphasis added. What the L? Clark says the facts in this case will be largely the same. Clark says there have been child sex abuse cases against the Boy Scouts for decades, but they have not had a very high profile. He says it was a system the organization used for keeping track of bad scout leaders. The perversion files included information on leaders who were gay or child molesters. During and after the seven week trial, Clark says his office received over calls from people who told stories of being abused as kids by the Boy Scouts.

But doctors weren't sure what was making him sick. He spent a few weeks in the hospital and was released. Last week, he traveled to the Mayo Clinic to seek treatment, and doctors believed he could have had liver cancer and leukemia. He was put on hospice and, within days, died. She was He was known for giving a brilliant closing argument.

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Clark referred to the case as the biggest of his career. It was later settled for an undisclosed amount, in order to avoid an appeal. He'd tell clients 'You've got a good case, but you need to take care of yourself first. In recent years, he successfully pushed Oregon lawmakers to extend the statute of limitations -- allowing victims of childhood sexual abuse to file lawsuits up until age 40 or within five years of when they realize the damage that the abuse has caused. Although Clark was well known for his representation of sex-abuse victims, his career was varied.

He served as a Republican state representative, representing West Linn, from to