State v. Robertson, 2015 MT 341 (Dec. 8, 2015) (Cotter, J.) (5-0, rev’d)
Issue: Whether the district court erred in dismissing the aggravated assault charge against Robertson based on the state’s failure to issue a fitness-to-proceed report within 90 days of Robertson’s commitment.
Short Answer: Yes, because Robertson waived the timeliness argument.
Reversed and remanded
Facts: Ross Robertson has been in and out of the state hospital at least seven times since 2004. Robertson attempted to rob a convenience store using a weapon in 2005. After a competency evaluation, he pled guilty but mentally ill and was sentenced to DPHHS’s custody for 15 years with 5 suspended.
In January 2012, Robertson violently attacked and seriously injured a nurse at MSH. He was transferred to Montana State Prison the next day where he continued serving his sentence for attempted robbery. While there, the state charged him with aggravated assault to which Robertson pled not guilty in February 2013. After he was found fit to proceed in July 2013, he quit taking all medications. In October 2013 and January 2014, he was found unfit to proceed. During this time, her continued serving his attempted robbery sentence.
On January 10, 2014, the district court suspended the aggravated assault proceeding and ordered Robertson back to MSH. Robertson was transferred to MSH on January 22, 2014. On April 16, 2014, MSH doctors issued a report finding Robertson unfit to proceed, and asked that his commitment to MSH be extended for 90 additional days. The court held a phone conference and issued the order on April 18, 2014. In June 2014, MSH doctors determined Robertson fit to proceed.
Procedural Posture & Holding: On June 24, 2014, Robertson moved to dismiss the assault charge on the basis that § 46-14-221(3)(a) required the state to determine whether he was fit to proceed within 90 days of his commitment. The district court granted Robertson’s motion, and the state appeals. The Supreme Court reverses.
Reasoning: The statute says the “committing court shall, within 90 days of commitment, review the defendant’s fitness to proceed.” § 46-14-221(3)(a), MCA. Here, the order of commitment was issued January 10, which Robertson claims started the statutory period, but Robertson was not transferred to MSH until January 22, which is when the state contends the period began. The Court does not decide which interpretation is correct. Robertson did not raise the issue of timeliness at the April 18 phone conference at which he agreed to continuing treatment at MSH. Robertson therefore waived his objection to the timeliness of the doctors’ report.