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SAN JOSE � A divided three-judge panel of the Sixth District Court of Appeal reversed a recommitment order on Wednesday, ruling that the request to seek an extension of a mentally disordered offender’s stay at a state hospital was filed in an untimely manner. The case calls into question whether the time limit imposed on recommitment orders is mandatory rather than directory. “We find this a fairly close question,” Justice Nathan Mihara wrote for the majority, which included Justice Richard McAdams. Filing a recommitment petition prior to its expiration “is a matter of substance rather than one of convenience,” Mihara wrote. “It simply makes no sense to seek the extension of something that has ended.” Acting Presiding Justice Patricia Bamattre-Manoukian, however, wrote in a concurring and dissenting opinion that this is a point that the California Legislature should clarify. While she agrees that the recommitment order for Gregory Sean Allen should be overturned, Bamattre-Manoukian believes the time limit to file these types of petitions is discretionary. “A mandatory time limit is inconsistent with the express purpose of the [Mentally Disordered Prisoner Act],” the justice wrote. “The purposes of the MDPA would be defeated if the time requirement for filing a recommitment petition was mandatory or jurisdictional, and therefore required automatic dismissal of an untimely recommitment petition.” Michael Kresser, an attorney with the Sixth District Appellate Program who represents Allen, said the debate over his client’s commitment status has taken “an awfully long time to get resolved.” In February 2004, Allen filed a habeas corpuspetition, claiming that his due process rights were violated when Santa Clara County prosecutors left him sitting in Atascadero State Hospital for seven months after his commitment order expired in October 2003. Allen further claimed that the extension that was eventually filed and granted in Santa Clara County Superior Court in June 2004 be tossed because “the trial court lacked jurisdiction to proceed on an untimely petition.” The Sixth District agreed with Allen’s reasoning, overturning the trial court’s commitment order with its opinion. Bamattre-Manoukian further suggested that the trial court hold a hearing to determine whether Allen’s due process rights were violated. “If the court finds a violation of due process, then the recommitment petition must be dismissed,” the justice wrote. In the meantime, Allen is still not a free man. “Until the [Sixth District] decision be-comes final, no one’s going to kick him out of the hospital,” Kresser said. The case is People v. Allen, .

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