No. 95-305 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1996

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula, The Honorable EdMcLean, Judge presiding.

COUNSELOFRECORD:

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 onBriefs: January 4, 1996 Decided: January 30, 1996Chief 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 astipulation between Kaplan andthe prosecution, the court found Kaplan not guilty byreason of mental disease or defect. Kaplan appeals. Wedismiss the appeal. Wefind the following issue dispositive onappeal: 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. OnAugust 9, 1994, the county attorney filed another information charging Kaplan with an additional four counts of stalking. OnNovember 18, 1994, the two
causes of action were consolidated. Thestalking charges all arose from Kaplan's repeated contact with her former martial arts instructor. Kaplan has along history of mental illness andhasbeen 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. OnMarch 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
2guilty byreason of mental disease ordefect. Kaplan wascommitted

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) Anappeal 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 byreason of mental disease ordefect. Because Kaplan was not convicted, there is no judgment of conviction from which to appeal. Thedenial of her motion to dismiss, absent ajudgment of conviction, is not itself anappealable order. Montana statutes provide remedies and avenues of appeal for individuals whoare committed following afinding that they suffer from amental disease or defect. Sections 46-14-301 through -303, MCA,provide methods for individuals whohave 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 anoption. Weconclude that Kaplan cannot appeal from ajudgment that she
wasnot guilty byreason of mental disease ordefect. Wetherefore dismiss her appeal.Weconcur:

Justices