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Kallowat v. State6/15/2004
pro se . Review of the record shows no error in these decisions.
With respect to appealing to the federal courts, Kallowat does not specify who it is he claims failed to appeal on his behalf. However, even if he had named the allegedly offending lawyer, appointed counsel in criminal cases are only required to represent the accused until such time as a final judgment has been rendered, including any direct appeal to the Montana Supreme Court. Section 46-8-103(1), MCA. Kallowat's appointed trial counsel represented him through his first appeal and was not obligated to represent him further.
Kallowat's final argument in the District Court consisted solely of the following statement: "Petitioner complains in his fourth ground that his conviction was obtained by the unconstitutional failure of the prosecution to disclose to him evidence favorable to him." The District Court dismissed this portion of the petition for failure to meet the pleading requirements of § 46-21-104, MCA, which requires petitioner to identify all facts supporting the allegation in addition to attaching any affidavits, records, or other evidence that support those facts. In his brief to this Court, Kallowat expands the allegation stating that the State did not inform him prior to his trial that the officer had a prior criminal record, and that had he known "this fact would have been submitted to the jury . . . and had the jury been aware of [the officer's] prior criminal record, in all probability, this case would have had a different verdict." This highly speculative conclusion does not address the pleading deficiencies pointed out by the District Court and is not supported by the record. Further, we do not address issues raised for the first time on appeal because it is unfair to fault the trial court on an issue it was never given opportunity to consider. In re Marriage of Killpack , 2004 MT 55, 10, 320 Mont. 186, 10, 87 P.3d 393, 10.
The order denying Kallowat's petition for post-conviction relief is affirmed.
JOHN WARNER
We Concur:
JAMES C. NELSON
PATRICIA O. COTTER
W. WILLIAM LEAPHART
JIM RICE
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