NO. 88-79 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSBRADLEY E. RENDER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Steven D. Nelson, Bozeman, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

Jennifer Bordy, Deputy County Atty., Bozeman, Montana 

Submitted on Briefs: June 9, 1988 

Decided: June 21, 1988 

Filed: JUN 2 1 1988 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the District Court of the 

Eighteenth Judicial District, Gallatin County, Montana. We 

vacate the District Court's judgment and remand to the 

District Court for a new trial by jury. 

The issue on appeal is: Does an appellant who has 

waived a trial by jury in Justice Court and thereafter 

appeals his conviction to the District Court have the right 

to a trial by jury in the District Court? 

Appellant, Bradley E. Bender was charged in Justice 

Court, Gallatin County, with a misdemeanor. Appellant waived 

trial by jury and was tried by the Justice of the Peace in a 

bench trial. The Justice Court found the appellant guilty, 

and he appealed to the District Court. Counsel for 

appellant on November 6, 1987, informed the District Court 

that his client requested a jury trial. The District Judge, 

upon learning that there had not been a jury trial in Justice 

Court, ruled that appellant was not entitled to a trial by 

jury in the District Court. On January 8, 1988, immediately 

prior to trial in the District Court, counsel for appellant 

objected to trial without a jury. The District Court again 

ruled that appellant was not entitled to a jury trial. After 

a bench trial, the District Court found the appellant guilty 

of the offense charged. 

As counsel for respondent, the Attorney General of the 

State of Montana notes that appellant made a timely request 

for a jury trial in the District Court and recommends that 

this case be remanded to the District Court with instructions 
to afford the appellant a trial by jury unless a written 

waiver is filed pursuant to S 46-16-102, MCA, which provides: 

(1) Defendants in all criminal cases 

shall have a right to trial by jury not 

to exceed 12 in number. The parties may 

agree in writing at any time before the 

verdict, with the approval of the court, 

that the jury shall consist of any 

number less than 12. 

(2 Upon written consent of the 

parties, a trial by jury may be waived. 

The Constitution of the State of Montana, Article 11, 

Sec. 24, provides: 

In all criminal prosecutions the accused 

shall have the right to appear and 

defend in person and by counsel; to 

demand the nature and cause of the 

accusation; to meet the witnesses 

against him face to face; to have 

process to compel the attendance of 

witnesses in his behalf, - and - a speedy 

public trial 2 an impartial jury of the 

county or district in which the offense 

is alleged to have been committed, 

subject to the right of the state to 

have a change of venue for any of the 

causes for which the defendant may 

obtain the same. (Emphasis added.) 

Section 46-17-311(1), MCA, provides: 

(1) All cases on appeal from justices' 

or city courts must be tried anew in the 

district court and may be tried before a 

jury of six selected in the same manner 

as a trial jury in a civil action, 

except that the total number of jurors 

drawn shall be at least six plus the 

total number of peremptory challenges. 
See, Adair v. Lake County Justice Court (Mont. 1984) , 

692 P.2d 13, 41 St.Rep. 2241, and City of Hardin v. Myers 

(Mont. 1981), 633 P.2d 677, 38 St.Rep. 1512. 

The judgment of the District Court finding defendant 

guilty is vacated and this cause is remanded to the District 

Court for a trial anew before a jury. 

We concur: V