NO. 91-265 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

V. 

VIRGINIA POLLOCK WILSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

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 

Clerk 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Defendant Virginia Pollock Wilson 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. case when the notice of appeal was filed 

prior to the Justice Court 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 

sentencing without 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, defendant was charged with driving a motor 

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 orally pronounced defendant guilty of the charges and 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 

the Thirteenth Judicial District Court and the case was 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. On April 1, 1991, the District Court dismissed and remanded 

the case back to Justice Court for sentencing before defendant had 

an opportunity to respond with a brief. Defendant appeals from the 

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 filed prior to the Justice Court rendering sentencing and 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. 

3 
In State v. Mortenson (1978), 175 Mont. 403, 404, 574 P.2d 581, 

582, we held that "the statutory ten day period for filing a notice 

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 

Justice Court orally pronounced defendant guilty and ordered her 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 defendant by the 

Justice Court. We agree with the District Judge that the District 

Court lacked subject matter 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 

4 
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. 

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 subject matter 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: 

5 
March 19, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Randy S. Laedeke 

Laedeke Law Office 

P.O. Box 2216 

Billings, MT 59103 

Hon. Marc Racicot, Attorney General 

Justice Bldg. 

Helena, MT 56920 

Dennis Paxinos, County Attorney 

Marcia Good Sept, Deputy 

P.O. Box 35025 

Billings, MT 59107 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: \g Depu