IN THE SUPREME COURT OF THE STATE OF MONTAN 

No. 87-228 1 - 1987 

STATE OF MONTANA, 1 

1 

Plaintiff/Respondent, 1 

--- 

CLERKOFSUPREME COURt 

STATE OF MONTANA 

1 

vs . 1 OPINION AND ORDER 

1 

WESLEY L. HARTFORD, 1 

1 

Defendant/Appellant. 1 

Wesley L. Hartford was convicted of driving under the 

influence of liquor in the Yellowstone County Justice Court. 

He attempted to appeal his conviction, but his notice of 

appeal to the District Court, Thirteenth Judicial District 

Court, Yellowstone County, was not timely filed. The 

District Court dismissed his appeal and ordered that Hartford 

complete the sentence imposed on him by the Justice of the 

Peace Court. Hartford appeals from the order of the District 

Court. 

Hartford's issues on appeal to this Court are: 

1. That his failure to file a timely notice of appeal 

from the Justice Court to the Yellowstone County District 

Court caused no harm or injury and constituted at the most 

"harmless error." 

2. That the actions, conduct and tactics of the state 

prosecutor as condoned by the Justice Court violated 

Hartford's fundamental rights; that because thereof the 

District Court should have interceded and its failure to do 

so was an abuse of discretion and "plain error." 

On October 27, 1986, Wesley Hartford was charged with 

driving under the influence of alcohol. His case came on for 
trial before the Justice of the Peace for Yellowstone County, 

before a jury, which returned a verdict of guilty. On 

February 11, 1987, the date of his conviction, the Justice of 

the Peace pronounced judgment and sentence consisting of a 

$200 fine, 60 days in jail, all suspended, and attendance at 

a DUI court school. Hartford's notice of appeal was filed 

with the Justice Court on March 4, 1987, and the record of 

the Justice Court was forwarded to the clerk of the District 

Court by certification on March 6, 1987. 

In Montana, a right to appeal from a criminal conviction 

from justice court to a district court is purely statutory 

and arises from 5 46-17-311, MCA, which provides: 

(1) All cases on appeal from Justices' or City 

Courts must be tried anew in the District Court 

... 

(2) A party may appeal to the District Court by 

giving written notice of his intention to appeal 

within 10 days after judgment, except that the 

State may only appeal in the cases provided for in 

§ 46-20-103. 

In this case, a period of 21 days elapsed from the 

judgment to the filing of the notice of appeal. Thus, 

Hartford far exceeded the statutory allowance of 10 days for 

such notice. 

Compliance with the statute is required to perfect an 

appeal from a Justice Court to the District Court because an 

appeal is exclusively a statutory right. State v. province 

(Mont. 1987), - P.2d - , 44 St.Rep. 775, 776; State v. 

Mortenson (1978), 175 Mont. 403, 574 P.2d 581. 

Without a timely notice of appeal, the District Court 

does not gain jurisdiction to consider an appeal from the 

Justice Court. State ex rel. Graveley v. District Court 

(1978), 178 Mont. 1, 582 P.2d 775; State v. Frodsham (19611, 

139 Mont. 222, 362 P.2d 413. 
Hartford contends, however, that our view of the 

necessity of strict compliance with the appeal statute has 

softened since our decision in Mortenson. Hartford cites 

State v. Main (1981), 623 P.2d 1382, 38 St.Rep. 205; and, 

State v. Dubray (1982), 201 Mont. 327, 654 P.2d 970. In 

Main, the pertinent issue involved transmittal of the record, 

not the filing of a notice of appeal. Likewise, Dubray did 

not involve an untimely notice of appeal but rather the fact 

that Dubray had done everything possible to transmit the 

Justice Court record to the trial court. Dubray had 

fulfilled all of the criteria mandated in § 46-17-311, MCA. 

201 Mont. at 331, 654 P.2d at 972. 

In State v. Tecca (1986), 713 P.2d 541, 43 St.Rep. 180, 

Tecca filed a notice of appeal in the City Court which 

improperly stated that the appeal would be to the Justice 

Court rather than the District Court. There we granted 10 

days to Tecca in which he could file a corrected notice. He 

had, however, filed a timely notice with the City Court. 

The only authority giving a party a right to appeal from 

a criminal conviction in a justice court to a district court 

in Montana is 46-17-311, MCA. Unless a party has made 

timely compliance with that statute, the District Court does 

not acquire jurisdiction of the appeal. In this case, 

therefore, the District Court had no other course but to 

dismiss the appeal. 

Hartford contends further, however, that the actions, 

conduct and tactics of the state prosecutor in the Justice 

Court violated his fundamental rights, which the District 

Court, in the interests of justice, should have recognized 

and corrected; and that its failure to do so constituted an 

abuse of discretion and "plain error." 

This contention calls for the impossible on the part of 

the District Court. A Justice of the Peace Court in Montana 
is not a court of record, and no transcript of the 

proceedings is available for review by the District Court or 

this Court for that matter. Hartford's remedy lay in his 

right to appeal to the District Court where, if Hartford had 

timely appealed, he would be entitled to try his cause anew, 

with a jury, if he wished. Section 43-17-311, MCA. His - de 

novo trial in the District Court would automatically erase 

any imperfections that may have occurred in the Justice Court 

trial. Again, his right to a trial -- de novo in the District 

Court depends upon a timely notice of appeal from the Justice 

Court. 

We hold that the District Court properly dismissed 

Hartford's attempted appeal from his criminal conviction in 

the Justice of the Peace Court. 

Accordingly, this appeal is hereby dismissed. Let 

remitittur issue forthwith.