No. 95-305 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Douglas Anderson, Missoula, Montana 

For Respondent: 

Honorable Joseph P. Mazurek, Attorney General; 

Kathy Seeley, Assistant Attorney General, 

Helena, Montana 

Robert L. Deschamps III, County Attorney; Betty 

Wing, Deputy County Attorney, Missoula, Montana 

Filed: 

Submitted on Briefs: January 4, 1996 

Decided: January 30, 1996 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Michal Kaplan was charged with seven counts of stalking, in 

violation of 5 45-5-220, MCA, in the Fourth Judicial District 

court, Missoula County. Pursuant to a stipulation between Kaplan 

and the prosecution, the court found Kaplan not guilty by reason of 

mental disease or defect. Kaplan appeals. We dismiss the appeal. 

We find the following issue dispositive on appeal: 

Whether Kaplan can appeal from a judgment finding her not 

guilty by reason of mental disease or defect. 

On March 29, 1994, the Missoula County Attorney filed an 

information charging Kaplan with three counts of stalking in 

violation of § 45-5-220, MCA. On August 9, 1994, the county 

attorney filed another information charging Kaplan with an 

additional four counts of stalking. On November 18, 1994, the two 

causes of action were consolidated. 

The stalking charges all arose from Kaplan's repeated contact 

with her former martial arts instructor. Kaplan has a long history 

of mental illness and has been repeatedly institutionalized in both 

Alaska and Montana. 

On December 19, 1994, Kaplan moved the District Court to 

dismiss the charges against her on the grounds that § 45-5-220, 

MCA, is unconstitutional. Following briefing, the court denied 

Kaplan's motion. 

On March 13, 1995, the parties stipulated that Kaplan should 

be found not guilty by reason of mental disease or defect. 

Pursuant to the parties' stipulation, the court found Kaplan not 

2 
guilty by reason of mental disease or defect. Kaplan was committed 

to the custody of the Superintendent of the Montana State Hospital. 

Kaplan now appeals the denial of her motion to dismiss. 

Section 46-20-104, MCA, entitled "Scope of appeal by defendant," reads, in part: 

(1) An appeal may be taken by the defendant only 

from a final iudqment of conviction and orders after 

judgment which affect the substantial rights of the 

defendant. [Emphasis added.] 

See also Rule l(d), M.R.App.P. Kaplan was found not guilty of 

stalking by reason of mental disease or defect. Because Kaplan was 

not convicted, there is no judgment of conviction from which to 

appeal. The denial of her motion to dismiss, absent a judgment of 

conviction, is not itself an appealable order. 

Montana statutes provide remedies and avenues of appeal for 

individuals who are committed following a finding that they suffer 

from a mental disease or defect. Sections 46-14-301 through -303, 

MCA, provide methods for individuals who have been found to suffer 

from a mental disease or defect to challenge such a finding. 

Appealing the constitutionality of the statute under which they 

were found not guilty is not an option. 

We conclude that Kaplan cannot appeal from a judgment that she 

was not guilty by reason of mental disease or defect. We therefore 

dismiss her appeal. 
We concur: 

Justices