No. 13898 

IN THE SUFREME COURT OF THE STATE OF MONTANA 

1978 

STATE OF MONTANA, 

Plaintiff and Respondent, 

ROGER MORTENSON, 

Defendant and Appellant. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

William E. Gilbert, Bozeman, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Ronald W. Smith, County Attorney, Havre, Montana 

Submitted on briefs. 

Submitted: January 5, 1978 

Filed: .j/?p; . 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court : 

This is an appeal from an order of the District Court, Hill 

County, dismissing defendant's appeal from a justice court 

conviction for failure to give notice of appeal within the 

prescribed statutory period. 

On December 23, 1975, a complaint was filed in justice 

court, Hill County, charging defendant with a violation of 

privacy in communications, a misdemeanor, under section 94-8-114, 

R.C.M. 1947. Defendant was arrested and arraigned on December 

24, 1975. 

Trial in justice court was held April 7, 1977, and 

defendant was found guilty. Time for sentencing was waived by 

the defendant, and oral judgment was imposed in open court, 

in the presence of counsel, on April 7. The judgment was 

reduced to writing on April 12, 1977. 

Counsel for defendant executed a written notice of appeal, 

dated April 21, and it was mailed to the Hill County Justice 

Court on April 23, and received by the court on April 27. The 

presiding justice of the peace thereafter set an appeal bond, 

which was furnished by defendant. 

The District Court dismissed defendant's appeal stating: 

''(2) Whether the appeal time is computed from the 

date of the oral judgment on April 7, 1977, or from 

the date of the written judgment of April 12, 1977, 

the notice of appeal was not given within 'ten days 

after judgment' as required by R.C.M. 95-2009." 

The controlling issue is whether the time for appeal from 

a justice court conviction runs from the date of verbal pronouncement of judgment in open court, or the date the judgment is executed 

by the justice of the peace and received by defendant. 
Defendant centrally contends the time for appeal runs 

from the date the judgment is executed by the justice of the 

peace and received by defendant, until the notice of appeal 

is mailed by defendant. Given such parameters, defendant 

maintains his notice of appeal was filed within the ten day 

period prescribed by statute. We cannot agree. 

The time allowed for appeal from a justice court conviction is set in section 95-2009, R.C.M. 1947: 

"(b) The defendant may appeal to the district court 

by giving written notice of his intention to appeal 

within ten (10) days after judgment." 

Section 95-2007(b), R.C.M. 1947, indicates judgment upon 

a plea or judicial determination of guilt is rendered in open 

court. There is no requirement in the Montana Code of 

Criminal Procedure, sections 95-101 et seq., R.C.M. 1947, 

that a justice of the peace reduce to writing oral judgments, 

nor is it required that a defendant be served a copy of a 

written judgment. Therefore, the statutory ten day period 

for filing a notice of appeal runs from the date of oral 

pronouncement of judgment in open court. 

We further hold the written notice of appeal must be 

filed with the justice court within the ten day period. In 

the absence of a specific provision regarding justice courts 

this language of section 95-2413, R.C.M. 1947, is applicable: 

"(a) Filing. Papers required or permitted to be filed 

must be placed in the custody of the clerk within the 

time fixed for filing. Filing may be accomplished by 

mail addressed to the clerk, but filing shall not be 

timely unless the papers are actually received within 

the time fixed for filing. * * *'I (Emphasis added.) 

(19741, 

See: State v. ~ush,/164 Mont. 81, 82, 518 P.2d 1406; State 

v. Bergum, (1974), 164 Mont. 155, 156, 520 P.2d 653. 
Defendant, in the instant case, was adjudged guilty in 

open court on April 7, 1977. His notice of appeal was received 

by the justice court on April 27, 1977, well beyond the ten day 

statutory filing period. Measured by the standards outlined 

herein, we find the District Court properly dismissed defendant's 

appeal for noncompliance with the provisions of section 95-2009(b). 

Further, even under defendant's argument the notice of appeal 

was not timely. 

The order of the District Court dismissing defendant's 

appeal is af f irmed.