NO. 91-265 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

STATE OF MONTANA, Plaintiff and Respondent,
V. VIRGINIA POLLOCKWILSON, Defendant and Appellant.

APPEAL FROM: DistrictCourt of the ThirteenthJudicial District, 

### In and for the County 

### of Yellowstone, The Honorable William J. Speare, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Randy S. Laedeke, Laedeke Law Office, Billings, Montana For Respondent: Hon. Marc Racicot, Montana Attorney General, George Schunk,Assistant Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Billings, Montana

-. ., I. . , Submitted on Briefs: December 12, 1991 Decided: March 19, 1992

ClerkJustice William 

### E. Hunt, Sr., delivered the opinion of the Court. DefendantVirginia PollockWilson appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, granting the State's motion to dismiss for lack of subject matter jurisdiction and remanding the case back to Justice Court for sentencing and final judgment. We affirm. Defendant raises two issues for this Court to consider. 1. Whether the District Court had subject matter jurisdiction over a D.U.I. casewhen the notice of appeal was filed prior to theJusticeCourt rendering sentencing and final judgment. 2. Whether the District Court erred when it dismissed defendant's case and remanded it back to Justice court for sentencingwithout allowing defendant the opportunity to respond to the State's motion to dismiss as provided by Rule 2 of the Uniform District Court Rules and Rule 6, M.R.Civ.P. On October 9, 1990,defendantwas chargedwith driving amotor vehicle while under the influence of alcohol, third offense, pursuant to 

### 5 61-8-401, MCA (1989),and driving while privilege to do so is suspended or revoked pursuant to 

### 5 61-5-212, MCA (1989). On February 5, 1991, defendant was tried without a jury in Justice Court. At the conclusion of trial, the Justice of the Peace orallypronounced defendant guilty of the chargesand ordered defendant to obtain an alcohol evaluation at her own expense and return for sentencing on February 26, 1991. On February 7, 1991,the Justice Court issued a written order and mailed it to the respective parties. On February 11, 1991, defendant filed a notice of appeal to theThirteenthJudicial District Court and the casewas transferred to District Court on March 11, 1991. On March 28, 1991, the State filed a motion to dismiss on the basis that the appeal was premature because defendant had not been sentenced in Justice Court. OnApril 1,1991, the District Court dismissed and remanded the case back to Justice Court for sentencing before defendant had
an opportunity to respondwith abrief. Defendantappeals fromthe order. I The first issue is whether the District Court had subject matter jurisdiction over a D.U.I. case when the notice of appeal
was filedprior to the Justice Court rendering sentencingand final judgment

# . Defendant contends that the appeal was improperly dismissed because notice of appeal was properly filed within the time parameters set by § 46-17-311(2), MCA (1989). Defendant argues that if she waited 21 days after the Justice Court orally pronounced her guilty she would have run the risk of being time barred from appealing. Section 46-17-311, MCA (1989), provides that a party who appeals from Justice Court to District Court must give written notice of its intention to appeal within ten days after judgment.

3In State 

### v. Mortenson (1978), 175 Mont. 403, 404, 574 P.2d 581, 582, we held that "the statutorytenday period for filing anotice of appeal runs from the date of oral pronouncement of judgment in open court." We have held that a prerequisite for an appeal from Justice Court to District Court is the imposition of sentence and final judgment. State 

### v. Hegeman (1991), 248 Mont. 49, 52, 808 P.2d 509, 511. Section 46-1-201(5), MCA (1989), defines judgment
as meaning "an adjudication by the court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court." Final judgment in this case had not been rendered. The JusticeCourt orallypronounced defendant guilty and orderedher to obtain an alcohol evaluation at her own expense. The Justice Court allowed her 21 days to obtain the evaluation before sentencing the defendant. Defendant filed notice of appeal prior to sentencing and final judgment by the Justice Court. An appeal cannot be utilized by the defendant until judgment has been fully rendered. This includes the conviction and sentencing of the defendantby the Justice Court. We agree with the District Judge that the District Court lacked subjectmatter jurisdiction 

### in this case. I1 The second issue is whether the District Court erred when it dismissed defendant's case and remanded it back to Justice Court for sentencing without allowing defendant the opportunity to

4respond to the State's motion to dismiss as provided by Rule 2 of the Uniform District Court Rules and Rule 6, M.R.CiV.P. Defendant argues that the District Court lacked authority to remand the case to Justice Court pursuant to our holding in City of Hardin

### v. Myers (1981), 194 Mont. 248, 249, 633 P.2d 677, 678, and that defense counsel did not have an opportunity to file an opposition brief to the State's motion to dismiss. We stress the point that the District Court lacked subjectmatter jurisdiction to even hear this case because the Justice Court had not rendered sentencing and final judgment upon the defendant. We hold that under the facts and circumstances of this case the District Court properly dismissed and remanded the case to Justice Court for sentencing. We affirm. Justice We concur:

5March 19, 1992 CERTIFICATEOFSERVICE Ihereby certify thatthefollowingorderwas sentby United Statesmail, prepaid,tothefollowing named: RandyS.Laedeke Laedeke Law Office P.O.Box2216 Billings,MT 59103 Hon. MarcRacicot, Attorney General JusticeBldg. Helena, MT 56920 DennisPaxinos,County Attorney MarciaGoodSept,Deputy P.O.Box35025 Billings,MT 59107 EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA BY: 

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