No. 87-27 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDARREL JAMES KESLER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jeannette Ellen Berry, Helena, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena, Montana 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

Marty Lambert, Deputy County Attorney, Bozeman 

Submitted on Briefs: June 25, 1987 

Decided: September 1, 1987 

Filed: SE? 1 - 1987 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Darrel James Kesler appeals a Gallatin County District 

Court judgment finding him guilty of driving while under the 

influence of alcohol in violation of $ 61-8-401, MCA. The 

sole issue on appeal is whether the District Court has 

appellate jurisdiction to review a Justice Court order 

suppressing evidence. We affirm. 

On November 24, 1985, Darrel James Kesler was arrested 

and charged with the offense of driving while under the 

influence of alcohol in violation of $ 61-8-401, MCA. Kesler 

entered a plea of not guilty in Gallatin County Justice Court 

on December 3, 1985. The Justice Court set the pretrial 

conference for March 24, 1986, and ordered that all pretrial 

motions be filed twenty days prior to the conference. Trial 

in Justice Court was set for April 8, 1986. 

On February 14, 1986, Kesler moved to dismiss the 

complaint on the grounds that the State had failed to make 

the arresting officer's report available in accordance with a 

local Justice Court rule. The Justice Court rule requires 

that the State provide discovery within sixty days of a "not 

guilty" plea. The arresting officer of the Montana Highway 

Patrol did not prepare a formal report until sometime in 

February of 1986. The State received the report on February 

14, 1986, and defense counsel received a copy on February 19, 

1986. 

The Justice Court heard Kesler's motion to dismiss on 

March 5, 1986. In its memorandum and order of March 7, 1986, 

the Justice Court denied the motion to dismiss and ordered 

instead that any evidence from the arresting officer be 

suppressed. On March 12, 1986, the State appealed the 

Justice Court suppression order to the Gallatin County 
District Court pursuant to 55 46-17-311(2), MCA, and 

46-20-103 (2) (e) , MCA. 

On June 6, 1986, Kesler filed a motion in District 

Court to affirm the Justice Court suppression order. The 

District Court denied this motion and stated that "[ilt has 

been the long-standing rule in Montana that district courts 

do not have supervisory or appellate reviewing powers over 

justice courts." The District Court set trial for September 

12, 1986. Kesler then applied for a writ of supervisory 

control to this Court on September 9, 1986, therein alleging 

the same issue as presented by this appeal. This Court 

denied Kesler's application. 

Prior to trial, Kesler moved to dismiss on the grounds 

that the District Court had appellate jurisdiction only and 

that Justice Court sanctions against the State are not 

appealable within the meaning of the statutes. The District 

Court denied both motions. On September 12, 1986, a Gallatin 

County jury found Kesler guilty of driving while under the 

influence of alcohol. The District Court later sentenced 

Kesler to twenty-four hours in the Gallatin County Detention 

Center and a $300 fine. The District Court also ordered that 

Kesler's driver's license be suspended for six months and 

that he attend the court's alcohol and drug abuse school. 

This appeal followed. 

Kesler argues on appeal that the District Court should 

have assumed appellate jurisdiction and reviewed only the 

Justice Court suppression order. A trial de novo, Kesler 

argues, is not within the District Court's appellate 

jurisdiction under the circumstances presented by this case. 

However, Kesler's arguments overlook the clear statutory 

language of 5 46-17-311, MCA, which provides the following in 

pertinent part: 
(1) All cases on appeal from justices' 

or citv 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. 

Section 46-20-103, MCA, provides: 

(1) Except as otherwise specifically 

authorized, the state may not appeal in a 

criminal case. 

(2) The state may appeal from any court 

order or judgment the substantive effect 

of which results in: 

(el suppressing evidence; 

In addition, the Montana Constitution provides that "[tlhe 

district court shall hear appeals from inferior courts as 

trials anew unless otherwise provided by law." Mont. Const. 

art. VII, § 4(2), Mont. Const. Finally, § 25-33-301(1), MCA, 

states that "[all1 appeals from justices' or city courts must 

be tried anew in the district court . . . " 

Kesler contends that subsections (1) and (2) of 

S 46-17-311, MCA, are ambiguous in that the former subsection 

requires trial de novo and the latter subsection makes 

reference to a statute, 5 46-20-103, MCA, that does not 

contemplate trial de novo. Kesler reasons that 5 46-20-103, 

MCA, pertains specifically to district court appeals to this 

Court and is designed solely to trigger interim appellate 

review. He concludes by asserting that this ambiguity should 

be settled in his favor to reverse his conviction. 
We find that the statutes in question are not ambiguous 

as applied to the circumstances of this case. Section 

46-20-103, MCA, merely lists those general instances in which 

the State may undertake an appeal from a lower court to a 

higher court. Nothing in the statute can be construed to 

prohibit trial de novo in a court of competent jurisdiction. 

In this case, the District Court was specifically vested with 

jurisdiction for a trial de novo on an appeal from Justice 

Court by S 46-17-311(1), MCA, S 25-33-301(1), MCA, and by 

art. VII, § 4(2), of the Montana Constitution. 

Assuming arguendo that there is some ambiguity between 

S; 46-17-311, MCA, and § 46-20-103, MCA, defendant has not 

convinced us that the legislature intended to prohibit a 

trial de novo when it amended the former statute to include 

the cross-reference to the latter statute. The legislative 

history of the 1985 amendment reveals that the intent of the 

legislature was to overrule this Court's decision in State v. 

Sanchez (1980), 187 Mont. 434, 438, 610 P.2d 162, 164, 

wherein we held that "the State has no right to appeal the 

final decision of a justice court in a criminal case. . . ." 

Section 46-17-311(2), MCA, as amended, now permits the 

State to appeal justice court orders and judgments in certain 

circumstances. The clear intent of S 46-17-311(1), MCA, is 

to require a trial de novo in district court on all appeals 

from justice court. The legislature could have prohibited a 

trial de novo in district court by amending subsection (1) of 

46-17-311, MCA. The legislature did not prohibit trial de 

novo when it amended the statute and we will not judicially 

amend the statute to create such a prohibition. 

Kesler asserts that the Justice Court's grounds to 

suppress evidence does not allow a similar motion to suppress 

to be made in the District Court. For that reason, he 

apparently chose not to move to suppress any evidence in the 
District Court, but rather sought to have the Justice Court 

suppression order affirmed. Without ruling on the propriety 

of the Justice Court's suppression of evidence in this case, 

we recognize that a motion to suppress evidence can be 

asserted at either the justice court or the district court 

level if a defendant's constitutional rights have in fact 

been violated. If Kesler had sufficient constitutional 

grounds to move for suppression of evidence in Justice Court, 

those grounds could have been reasserted in District Court in 

a new motion to suppress. We note here that Kesler did not 

move for suppression of evidence in either Justice Court or 

District Court. The Justice Court chose to suppress evidence 

on its own initiative rather than to dismiss the complaint as 

Kesler requested. 

Kesler also contends that the effect of a trial de novo 

in this case is to deprive him of his constitutional due 

process and equal protection rights. He argues that the 

State's appeal to District Court serves to avoid the 

consequences of the Justice Court suppression order. 

Kesler's argument in this regard is without merit. On the 

one hand, Kesler alleges that his constitutional rights were 

violated by the State's failure to provide a nonexistent 

report in the time prescribed by the Justice Court rule. On 

the other hand, Kesler failed to move to suppress the report 

in either Justice Court or District Court. As previously 

discussed, Kesler could have moved to suppress this evidence 

in District Court had he constitutional grounds to do so. 

Kesler made no such motion and the constitutionality issue is 

not properly before us on this appeal. 

We again emphasize that a criminal case on appeal from 

justice court to district court must be tried anew in the 

district court pursuant to S 46-17-311, MCA, regardless of 

which party appeals. Accord State v. Waymire (Mont. 1987), 
P.2d , 44 St.Rep. 759; Adair v. Lake County Justice 

Court (Mont. 1984), 692 P.2d 13, 41 St.Rep. 2241. 

Accordingly, we hold that a district court does not have 

appellate jurisdiction to review a justice court order 

suppressing evidence. Nothing in this opinion should be 

construed to expand or limit the scope of the State's right 

to appeal as set forth in § 46-20-103 (2), MCA 

Affirmed. 

We Concur: