NO. 96-160 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

WILLIAM A. COLE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Nels Swandal, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William A. Cole, Las Vegas, Nevada (pro se) 

For Respondent: 

Joseph P. Mazurek, Attorney General, Cregg Coughlin, 

Assistant Attorney General, Helena, Montana; Tara 

DePuy, Park County Attorney, Livingston, Montana 

, , ~ t,-.w. 

Submitted on.Briefs: September 26, 1996 

Decided: November 7, 1996 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter arid West Publishing Company. 

Appellant William A. Cole (Cole) appeals the jury verdict 

entered by the Sixth Judicial District Court, Park County, finding 

him guilty of one count of driving a motor vehicle while his 

privilege to do so was suspended or revoked and one count of 

operating a motor vehicle without liability insurance. 

Af f irmed. 

Cole was charged on November 16, 1994, with driving a motor 

vehicle when his privilege to do so was suspended or revoked and 

with driving a motor vehicle without liability insurance. Cole 

failed to appear so trial in the Justice Court was held without him 

present and he was convicted of both counts. Cole claimed that he 

failed to appear because the Justice Court served him by mail at 

the wrong address and, consequently, he had no notice of the 

Justice Court trial. In any event, Cole appealed the Justice 

Court's decision to the District Court, which scheduled a trial de 

novo in the matter. 

Prior to the District Court trial, Cole requested that counsel 

be appointed by the court to assist him. This request was denied 

and Cole proceeded to trial pro se. Cole also requested and 

received a jury trial. At the end of the case, Cole presented 

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eight proposed jury instructions to the District Court, all of 

which were rejected. Following the one-day trial, Cole was again 

found guilty on both counts. Cole appeals. 

Cole raises the following restated issues on appeal: 

1. Did the Justice Court err by sending service of process in 

.this matter to Cole at an incorrect address? 

2. Did the District Court err by refusing to appoint counsel 

to assist Cole in this case? 

3. Did the District Court err by refusing to give Cole's 

proposed jury instructions? 

Cole first asserts that the Justice Court erred by sending 

service of process to the incorrect address, thereby depriving him 

of actual notice of the Justice Court trial at which he was 

initially convicted. The State argues that this issue is moot 

since Cole received a trial de novo in the District Court. While 

the State does not concede that the Justice Court erred in mailing 

service to the address that it did, the State nevertheless argues 

that, even if such an error is presumed, it was cured by the trial 

de novo. 

Black's Law Dictionary 435 (6th ed. 1990) defines a de novo 

trial as "[tlrying the matter anew; the same as if it had not been 

heard before and as if no decision had been previously rendered." 

(Citation omitted.) Section 46-17-31'1, MCA, also provides that 

'all cases on appeal from a justice's or city court must be tried 

anew in the district court . . . ." This Court has repeatedly held 

that a district court may not sit as a court of review over justice 
court proceedings. See State ex rel. Wilson v. District Court of 

the Thirteenth Judicial District (1995), 270 Mont. 449, 451, 893 

P.2d 318, 319-20; City of Billings v. McCarvel (1993), 262 Mont. 

96, 101, 863 P.2d 441, 444. Therefore, a party's exclusive remedy 

for review of a justice court's decision is a trial de novo in the 

district court, as if the justice court proceeding had never 

occurred. State v. Todd (1993), 262 Mont. 108, 111, 863 P.2d 423, 

426; Rickett v. City of Billings (1993), 262 Mont. 339, 340, 864 

P.2d 793, 794. 

Even if we were to presume that service of process was 

incorrectly accomplished by the Justice Court, we fail to see how 

this prejudiced Cole. By his own request, he was granted a jury 

trial de novo in the District Court, where the case was presented 

again in full and without regard to the earlier Justice Court 

proceeding. It is undisputed that Cole received proper service of 

process regarding the District Court proceeding and was present in 

that court to defend himself. The matter was tried anew in the 

District Court, as if the Justice Court trial had never occurred, 

and Cole has failed to show how a procedural defect present at the 

Justice Court proceeding prejudiced his rights at the later 

District Court trial. 

Cole next alleges that the District Court erred by refusing to 

appoint counsel to assist him with the District Court trial. He 

asserts that, pursuant to Article 11, Section 24 of the Montana 

Constitution, he was entitled to the assistance of counsel. 
Article 11, Section 24 of the Montana Constitution provides in 

part that "[iln all criminal prosecutions the accused shall have 

the right to appear and defend in person and by counsel . . . ." 

However, this right of the accused does not mean that, in all 

criminal cases, the State must provide counsel to the defendant. 

Section 46-8-101 (3) , MCA, sets out the circumstances under which 

the State must provide counsel: 

The defendant, if unable to employ counsel, is entitled 

to have counsel assigned if: 

(a) the offense charged is a felony; 

(b) the offense charged is a misdemeanor and the 

court desires to retain imprisonment as a sentencing 

option; or 

(c) the interests of justice would be served by 

assignment. 

In this case, the offense was not a felony; the District Court did 

not retain imprisonment as an option for sentencing this 

misdemeanor conviction; and there was no showing that the interests 

of justice mandated the appointment of counsel. Further, the 

Montana Rules of Appellate Procedure require the submission of a 

record sufficient to enable this Court to properly review the 

issues raised, as well as citations to the record and to legal 

authority in support of the arguments presented. Rules 9 and 23, 

M.R.App.P. Cole has failed to meet this burden. 

Cole did not include a transcript of the District Court 

proceeding in his appeal even though one apparently was available. 

Consequently, this Court does not have a complete record before it. 

Without a complete record, Cole fails to establish that he properly 

preserved this issue for appeal nor does he cite to any legal 

authority in support of his argument, beyond the simple recitation 

5 
of the pertinent constitutional provision. Because of the lack of 

factual or legal support of this argument and keeping in mind the 

presumption of propriety of the District Court's decision, we 

cannot ascribe error to the District Court's determination that 

Cole was not entitled to the assistance of court-appointed counsel. 

Lastly, Cole argues that the District Court erred by refusing 

to give any of his proposed instructions to the jury at the close 

of the case. 

Our standard of review of discretionary trial court rulings is 

whether the district court abused its discretion. The court 

exercises its discretion when giving, or refusing to give, specific 

jury instructions, and we will not reverse a district court on the 

basis of its instructions absent an abuse of discretion. Lacock v. 

4B's Restaurants, Inc. (Mont. 1996), 919 P.2d 373, 375, 53 St.Rep. 

492, 493 (citations omitted). Further, it is not error for a 

district court to refuse an offered instruction unless such refusal 

affects the substantial rights of' the party proposing the 

instruction. A party is not prejudiced by a refusal of proposed 

jury instructions if the subject matter within the instructions is 

not supported by the pleadings, facts, or evidence of the case. 

Busta v. Columbus Hospital Corp. (Mont. 1996), 916 P.2d 122, 132, 

53 St.Rep. 428, 436 (quoting King v. Zimmerman (1994), 266 Mont. 

54, 64, 878 P.2d 895, 902). 

In this case, the issues presented to the jury were whether 

Cole was guilty of the offenses of driving without a valid license 

and driving without liability insurance covering his vehicle. 
Cole, however, desired to give instructions to the jury having no 

relevance to the issues presented. Specifically, Cole wanted the 

jury to be instructed on the following: 

Rule 60 (b) , M.R.Civ.P. (circumstances under which a 

final judgment may be set aside) ; 

Rules 9 (b) and 9 (c) , M.R. Civ. P. (the pleading of 

fraud and the pleading of conditions precedent); 

Section 28-2-401, MCA (circumstances under which 

'apparent consent' will be deemed not freely 

given) ; 

Section 28-2-402, MCA (what actions constitute 

duress) ; 

Section 28-2-403, MCA (what actions constitutes 

menace) ; 

Section 28-2-409, MCA (what* constitutes a mistake 

of fact) 

Section 45-7-207, MCA (tampering with or 

fabricating physical evidence); and 

Section 45-7-208, MCA (tampering with public 

records or information). 

Aside from asserting that the District Court erred in refusing 

these instructions, Cole does not specify why this refusal was 

error or how any of the above instruction might be relevant Co his 

case. All the instructions proposed by Cole were entirely 

unconnected from the determination to be made by the jury as to 

whether or not he was guilty of two traffic offenses. 

The judgment of the District Court is affirmed. 

We Concur: I/