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 togive notice of appeal within the prescribed statutory period. On December 

### 23, 1975, a complaint was filed injustice court, 

### HillCounty, 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 injustice court was held April 

### 7, 1977, and defendant was found guilty. Time for sentencingwas waived by the defendant, and oraljudgment was imposed inopen court, in the presence of counsel, on April 

### 7. The judgment was reduced to writing on April 12, 1977. Counsel for defendant executed a writtennotice of appeal, dated April 21, and itwas mailed to the HillCounty Justice Court on April 23, and received by the court on April 

### 27. The presidingjustice 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 oraljudgment on April 

### 7, 1977, or from the date of the writtenjudgment of April 12, 1977, the notice of appeal was not given within 'ten days afterjudgment' as required by R.C.M. 95-2009." The controlling issue 

### iswhether the time for appeal from
a justice court conviction runs from the date of verbal pronouncement of judgment in open court, or the date thejudgment 

### is executed by thejustice of the peace and received by defendant.Defendant centrally contends the time for appeal runs from the date thejudgment 

### is executed by thejustice of the peace and received by defendant, until the notice of appeal 

### is mailed by defendant. Given such parameters, defendant maintains hisnotice of appeal was filedwithin 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 districtcourt by giving writtennotice of his intention toappeal within ten (10) days afterjudgment." Section 95-2007(b), R.C.M. 1947, indicatesjudgment upon
a plea orjudicial determination of guilt 

### is rendered inopen court. There 

### isno requirement in theMontana Code of Criminal Procedure, sections 95-101 etseq., R.C.M. 1947, that a justice of the peace reduce towriting oraljudgments,
nor 

### is it required that a defendant be served a copy of a writtenjudgment. Therefore, the statutory ten day period for filing a notice of appeal runs from the date of oral pronouncement of judgment inopen court. We furtherhold the written notice of appeal must be filedwith thejustice 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 orpermitted tobe filed must be placed inthe custody of the clerkwithin the time fixed for filing. Filing may be accomplished by mail addressed tothe clerk, but filing shallnot be timely unless the papers areactually 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), 164Mont. 155, 156, 520 P.2d 653.

### Defendant, in the instant case,was adjudged guilty in open court onApril 7, 1977. His notice of appealwas received by the justice court onApril 

### 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 noncompliancewith the provisions of section 95-2009(b). Further, evenunder defendant's argument the notice of appeal
was not timely. The order of the District Court dismissing defendant's appeal is affirmed.