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Nishwitz v. State
ORIGINAL 12/04/2024
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 24-0680
OP 24-0680
JOHN DAVID GUY NISHWITZ,
Petitioner,
v. ORDER STATE OF MONTANA, and LT. ROBERT LESTER, Yellowstone County Detention Facility, FILED DEC 0 4 2024 Respondents. Bowen Greenwood C:erk of Supreme Court L.tszti"..4 of Monturia
John David Guy Nishwitz has filed a verified Petition for Writ of Habeas Corpus, requesting dismissal of the charges and his release from jail. We amend the caption to include the name of the Administrator at the Yellowstone County Detention Facility (YCDF). Section 46-22-201(1)(c), MCA. In his attachment, Nishwitz states that he is a pre-trial detainee with a pending case in which the State has charged him with four counts of sexual abuse of children in the Thirteenth Judicial District Court, Yellowstone County. Nishwitz states that he has court-appointed counsel. Nishwitz contends that the District Court has "ignored several motions, pointing out Mont. and U.S. Const. rights that have been and are still being violated in Petitioner's case." He adds that his original bail was set at a million dollars and that now the court has imposed a $500,000 bond after a hearing. Nishwitz asserts that the amount "is still above what he can afford." This Court secured a copy of the register of actions. The State charged Nishwitz in July 2023, which led to his arrest. In September 2024, the District Court allowed counsel to withdraw. Recently, on November 13, 2024, the court held a hearing concerning the status of trial, and several days later, two attorneys filed a Notice of Co-Counsel.
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Nishwitz has not demonstrated illegal incarceration. Habeas corpus affords applicants the opportunity to "prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from the imprisonment or restraint." Section 46-22-101(1), MCA. The cause of Nishwitz's incarceration is his pending criminal case. Gates v. Missoula Cnty. Comm'rs, 236 Mont. 261, 261-262, 766 P.2d 884, 884-885 (1988). Nishwitz is not entitled to release or dismissal of the charges. The court has set a bail amount, and Nishwitz cannot demonstrate want of bail, pursuant to § 46-22-103, MCA. Nishwitz's remedy is not with this Court. Nishwitz may seek an appeal upon receiving a final written decision from the District Court. Nishwitz is not entitled to release or to habeas corpus relief. Section 46-22-101(1), MCA. Accordingly, IT IS ORDERED that Nishwitz's Petition for Writ of Habeas Corpus is DENIED and DISMISSED. The Clerk is directed to provide a copy of this Order to: the Honorable Ashley Harada, District Court Judge; Tina Henry, Clerk of District Court, under Cause No. DC 23-0878, and for distribution to counsel of record; Lt. Robert Lester, YCDF Administrator; counsel of record, and John David Guy Nishwitz personally. DATED this 1 — day of December, 2024.
Chief Justice
gi fr, 4.14,. Justices
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