NO. 93-351 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

STATE OF MONTANA, Plaintiff and Respondent,

### -vsROBERT DEAN ROGERS, 

# OCT 251994

APPEAL FROM: DistrictCourt of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD: ForAppellant: William M. Brooke; Bozeman, Montana Moore, O'Connel Refling,

For Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, AssistantAttorneyGeneral,Helena,Montana Mike Salvagni, Gallatin County Attorney, Bozeman, Montana

Filed: Submitted on Briefs: June 23, 1994 Decided: October 25, 1994

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. % ;, 3' Vibd ~lerkJustice Karla M. Gray delivered the Opinion of the Court. Robert Dean Rogers (Rogers) appeals from an order of the Eighteenth Judicial District Court, Gallatin County, granting the State of Montana's Motion to Dismiss Appeal. We reverse. Rogers was charged in Gallatin County Justice Court with the misdemeanor offenses of assault and resisting arrest pursuant to 

### 55 45-5-201 and 45-7-301, MCA, respectively. Heultimately entered guilty pleas to both charges and was sentenced to six months in jail, suspended on conditions including that he obey all laws. Rogers subsequently was arrested and charged with driving under the influence,driving without liability insurance in effect, and driving without a valid driver's license. On the basis of those charges, the State of Montana (State) filed a Petition to Revoke Suspended Sentence in the Justice Court. A revocation hearing was scheduled for, and held on, October 30, 1992. The JusticeCourt Minutes reflect that the Statepresented evidencevia three witnesses; Rogers presented no evidence. The Justice Court found that Rogers had violated the conditions of his suspended sentence. The court again suspended his sentence, adding additional conditions to those originally imposed. Rogers appealed to the District Court for a trial de novo on the petition for revocation of his suspended sentence. The State moved to dismiss the appeal, arguing that no appeal is available pursuant to 46-17-311, MCA, because a suspended sentence revocation is an administrative, rather than a criminal, proceeding. Rogers responded that a broader reading of the statute 2and several Montana Supreme Court cases was appropriate and necessary in order to provide for an appeal de novo under these circumstances. Following a hearing,theDistrict Courtgranted the State'smotion. Rogers timely filed his notice of appeal to this Court. Ingranting the Staters motion to dismiss Rogers1appeal, the District Court determined that a revocation is an administrative proceeding rather than a criminal adjudication. Thus, the court reasoned, the revocation of a suspended sentence is not a judgment fromwhich an appeal de novo may be takenpursuant to 

### 5 46-17-311, MCA

# . The procedures to be followed in a proceeding for revocation of a suspended sentence are set forth in 

### 5 46-18-203, MCA. It is clear from that statute that a revocation proceeding is not equivalent to a criminal trial: only a hearing, rather than a trial, is required; the prosecution's burden of proof is only a preponderance of the evidence;and the issue is not one of guilt or innocence,but iswhether theperson has violated a condition of a suspended sentence. Section 46-18-203, MCA. Our cases recognize thesebasic differencesbetween revocationproceedingsand criminal trials. 

### See, e.g., State

### v. Watts (1986), 221Mont. 104, 717 P.2d 24;Statev. Robinson (1980),190Mont. 145,619 P.2d 813;Statev. Oppelt (1979), 184 Mont. 48, 601 P.2d 394; State v. Ryan (1975), 166 Mont. 419, 533 P.2d 1076. The cases do not, however, characterize revocation proceedings as uadministrative"hearings,

as the State argues and the District Court concluded.

### Section 46-17-311, MCA, provides for appeals from justices' and city courts to district courts, and requires trial de novo in the district courts. Located as it is in the Criminal Procedure Title of the Montana Code Annotated, the statute can be construed

as providing for appeals only in criminal matters. This interpretation is further clarified by the language contained in 

### 5 46-17-311(2), MCA,which requires writtennoticeof intentionto appeal within 10 

### days "after a judgment is rendered following trial." As discussed above, a revocationhearing is not a criminal trial. Moreover, as the Statepoints out, a lljudgment"--as the term isused in 

### 5 46-17-311(2), MCA--includes an adjudication of whether

a defendant is guilty or not guilty and, if guilty, the pronouncement of sentence. See 

### 5 46-1-202(10), MCA. Here, while themulti-purpose form utilizedby the JusticeCourt indicatesthat the court "found defendant guiltyNof violating the conditions of his suspended sentence,

### 5 46-18-203,MCA, does not speakto llguiltll

or "innocence" in the context of revocation hearings. Rather, it simply requires the court to determine whether or not the prosecution has proved a violation of the conditions of the suspended sentenceby a preponderance of theevidence. Section 46- 18-203(6) 

### -(8)

## , MCA. Thus, a straightforward reading of 

### 5 46-17- 311, MCA, and our cases, appears to support the District Courtls conclusion that an appeal de novo is not available here. The problem with that conclusion, however, is that it forecloses any appeal to, or review by, any court from a justice

### court's revocation of a suspended sentence. Nor does the conclusiontake the legislature's intent into account. Appeals for denovo proceedings indistrict courtsare statutorilyprovided for in criminaland civil matterspursuant to g 46-17-311 

### andTitle 25, 

### Chapter 33, 

### MCA, respectively. We conclude that, taken together, these statutes reflect the legislature's intent to provide for appealsdenovo to thedistrict courts fromall final justice court proceedings. The only remaining question,then, iswhether the legislature intended appeals de novo from justice court revocations of suspended sentences tobe governed by 9 46-18-203, 

### MCA, or Chapter 33 

### of Title 25 

### of the Montana Code Annotated. The legislature placed g 46-18-203, 

### MCA, governing revocation proceedings in the Criminal Procedure Title of the Montana Code Annotated. It included in that statute the following provisions which are substantially similar to those relating to criminal trials: 1. 

### An arrest warrant may be issued upon the filing of a petition to revoke a suspended sentence; 2. 

### Statutes relating to bail are applicable; 3. 

### The ITdefendantn must be advised of, and provided,many of the same rights as in criminal proceedings, including theright to court-appointed counsel in the event counsel cannot be afforded; and 4. 

### Jail time may result. Section 46-18-203, 

### MCA. Furthermore, we have recognized that revocation proceedings

arematters overwhich the original sentencing court in a criminalcase "retains jurisdiction." Ouuelt, 601 P.2d at 397. Thus, revocations are a postconviction continuation of criminal cases. Indeed, it is clear that a criminal defendant whose sentence has been suspended has a liberty interest in retaining the suspended nature of his or her sentence, and faces thepossibility of a loss of that liberty via a revocation proceeding in justice court. We have specificallyrecognized that a liberty interest is at stake in revocation proceedings. 

### See, Robinson, 619 P.2d at 814-15. Based on these cogent and numerous similarities between criminal and revocation proceedings, we hold that appeals de novo from justicecourtrevocations of suspended sentences areavailable under, and governed by,

### 5 46-17-311, MCA. Inthis regard, however, the 

### 5 46-17-311(1), 

### MCA, language that appeals from justice court to district court "may be tried before a jury 

# . . . " clearly is inapplicable to the appeals at issue herein because the issue of whether a suspended sentence will be revoked is not subject to trial by jury initially in the justice court. We conclude by observing that nothing in this opinion impacts on our prior cases distinguishing, for purposes of the issues presented therein, between revocation proceedings and criminal adjudications. Reversed and remanded for further proceedings consistent with this opinion. 

### /

We concur: AJustices

### Justice Terry 

### N. Trieweiler specially concurring. I

### concurwith the result of the majority opinion. However, I 

### do not agree with all that is said in that opinion. Specifically,Idisagree with themajority's and thedissent's conclusions that "a straightforward reading of 5 

### 46-17-311, MCA, and our cases, appears to support the District Court's conclusion that an appeal de novo is not available here." A straightforward reading of 5 

### 46-17-311, MCA, compels the conclusion that an appeal 

### de novo is permitted under the circumstances in this case. Section 46-17-311(2), MCA, provides in relevant part that I1[t]hedefendantmay appeal to thedistrict courtby filingwritten notice of intention to appeal within 10 

### days after a judment is rendered following trial." (Emphasis added.) Trial is defined in Black's Law Dictionary as: A judicial examination, in accordance with law of the land,of a cause,either civil or criminal,of the issues between the parties, whether of law or fact, before a court that has jurisdiction over it. For purpose of determining such issue. It includesall proceedings from time when issue is joined, or,more usually,when parties are called to try their case in court, to time of its final determination. Black's Law Dictionary 1657 (Rev. 4th ed. 1976) (citations omitted). The defendant's revocation hearing was a judicial proceeding at which evidence was presented, witnesses were called and crossexamined, and factual issues were resolved 

### by the Justice Court. While it may not have been a "criminal adjudicationt'for the

### purpose of requiring the constitutional guarantees considered in

our previous cases,see Statev. Ryan 

### (1975), 166 Mont. 419, 533 

### P.2d 1076;Statev.OppeIt 

### (1979), 184Mont. 48, 

### 601 P.2d 394;Statev.

### Robinson (1980), 190Mont. 145, 619 P.2d 813, it was, nevertheless, a trial

as that term is commonly understood in Anglo-American jurisprudence. There is nothing really complicatedor elusive aboutdefining the terh "trial." Most first-year law students could recite that

a trial is an adversaryproceeding at which evidence ispresented, and as a result of which, factual or legal issues are resolved. Definingtheterm onlybecomes complicated when someone insists,as the dissent does, on arriving at the word's meaning by patching together the quilt work of resu:Lt-orienteddecisions inwhich this Court has created a subspecies of Iftrial"known as the "criminal trialuor "criminal adjudication" for thepurpose of avoiding at a revocation hearing theconstitut:ional protectionsthat applyto the initialdeterminationof adefendant

## ' sguilt. However,thosecases have no applicationhere. We are not asked in this case to decide whether this revocation was a. 

### t*criminaladjudication" for the purpose of applying due process, double jeopardy, or any other constitutionalguarantee. We are simplyasked in thiscase whether this adversary proceeding at wh.ichevidence was taken and factual issues were resolved was a g*itrialw within the meaning of our statute which authorizes appeals from decisions of the justice court. Sometimesby trying too'hard, we overlook the obvious.

### Similarly, when the District Court amended defendant's previously imposed sentence, the District Court amended its judgment, and thereby entered a new judgment. 

### A judgment is commonly understoodto

### be "[tlhe officialand authentic decision of a court of justice upon the respective rights and claims of the parties to anactionor suittherein litigatedand submittedto its determination." Black's Law Dictionary 977 (Rev. 4th ed. 1976)

(citationsomitted). While the statutory definition of "judgment" refers to an adjudication of guilt or innocence,that same statutory definition includes the sentence pronounced by the court. Section 46-1- 201(10), MCA. Therefore,any amendment to that sentence isno less

an amendment to the court's judgment, and defendant's right to appeal from the amendment is no less important than his right to appeal from the original judgment. To hold that there is a statutoryright to appeal from judgments entered in justice court, but not from amendments to a judgment entered in justice court simplybecause the Legislaturedid not spell that fact out, exalts form over substance and would frustrate the purpose for which appeals from justice court judgments are allowed. Therefore, I 

### too would reverse the judgment of the District Court and allow defendant to proceed with his appeal from Justice Court to District Court. However, for the above reasons, I

### do not agree with all that is said in the majority opinion.JUS~~C~ James C. Nelson, dissenting.

I respectfully

### dissent 

### from the 

### Court's opinion in this case. We conclude that 'I. 

## . . a straightforward reading of § 46-17-311, MCA, and our cases, appears support the Court conclusion that 

### an appeal de novo isnot availablehere." Iagree, and that,necessarily, 

### is where our inquiry in this casemust end. Dissatisfied with the obvious, however, we then step through the looking glass and conclude that "takentogether

# . .

# . (546-17- 311and Title 25, chapter 33,MCA] reflect the legislature'sintent to provide for appeals de novo to the district courts from all final justice court proceedings.'1 Exactly where that intent is reflected in the otherwise clear and unambiguous statutory scheme at issue, is not evident 

### in our 

### opinion

## -- most likely because the legislature's expressed intent 

### is quite the opposite. I submit that justifying our decision here on thebasis 

### of the legislature's "intent" merely stands as our testament to the 

### way we wished the law was, rather than a forthright interpretation of what the law actually is. I begin with the rules of statutory construction so oft repeatedby thisCourt, and

### most recently sowell summarized in our

Vilensky 

### v. District Court, (August 30, 1994), -Mont

# . -I - P.2d,51 St. Rep. 776. There,we stated: Our role 

### in construing statutes is clear. We 

### must "ascertain and declare what is in terms or in substance contained therein.. .;IT we may not insert what has been omitted or omit what hasbeen inserted. Section 1-2-101, MCA. The intention of the legislature 

### is to be pursued.Section 1-2-102, MCA. If that intention can be determined from the plain meaninq of the words used, a court may not qo further and aaplv other means of interpretation. (Citationomitted.) Where thestatutory language is "plain,unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe." (Citation omitted.) (Emphasis added.) Curtis & Vilensky, 51 St. Rep. at 778. There isnouncertainty orambiguity in 5 46-17-311,MCA, that requires us to divine legislative intent; the statute is clear and direct. The legislature has plainly expressed its intent in the clearest language and has provided for appeals, by trial de novo, fromthe courts of limited jurisdictionto thedistrict courts only "after a judgment is rendered following trial." Section 46-17- 311(2), MCA. A "judgment" is statutorily defined as the adjudication of guilt or innocence and includes the pronouncement of sentence. Section 46-1-202(10), MCA. It is undisputed 

## -- and our opinion acknowledges the fact 

### -- that a probation revocation hearing is 

## not a "trial" and a revocation of probation following a hearing is 

### not a "judgment." There is absolutely no language in either 5 46-17-311, MCA, or § 46-18-203,MCA, by which the legislature has either explicitly or implicitly statutorilyprovided for the right of appeal de novo to the district court from a probation revocation by a court of limited jurisdiction. The legislature has, to the contrary, clearly limited, by statute, the right of appeal from courts of limited jurisdiction to the district courts in criminal proceedings, to those proceedings involving the adjudication of guilt or innocenceandpronouncementof sentence followinga trial.Our cases are legion. The right of appeal exists only by statute or rule. McClurg 

### v. Flathead County Com'rs (1978), 179 Mont. 518, 519, 587 P.2d 415, 416. Appeal is a creature of and exists only by statute, and without supporting statutes, there is

no appeal. Matter of Sage Creek Drainage Area (1988), 234 Mont. 243, 248, 763 P.2d 644, 647; State v. District Court (1955),128 Mont. 538, 544, 279 P.2d 691, 694. The right of appeal is purely statutory. Matter of Sase Creek Drainaqe Area, 763 P.2d at 647; Sheridan County Electric Co-op v. Anhalt (1953),127 Mont. 71, 74, 257 P.2d 889, 890; Corcoran 

### v. Fousek (1951), 125 Mont. 223, 224, 233 P.2d 1040, 1041. (Emphasisadded.) In State v. Hartford (1987), 228 Mont. 254, 256, 741 P.2d 1337, 1338, we stated: Compliance with the statute is required to perfect an appeal froma JusticeCourt to the ~istrict courtbecause an appeal is exclusivelv a statutory riqht. State v. Province (Mont. 1987). 1226Mont. 425.1 735 P.2d 1128. 44 St. Rep. 775, 776; stagev.

## ort tens on' (l978), 175 ~dnt. 403, 574 P.2d 581. (Emphasisadded.) Moreover, statutes relating to appeals are mandatory and jurisdictional and prohibitory and jurisdictional in that they limit the right of appeal to the method expressly provided by statute. Montana Power Co. v. Dept. of Public Serv. Reg. (1985), 218 Mont. 471, 479, 709 P.2d 995, 999; State v. District Court of the Tenth Judicial District (l955), 128 Mont. 526, 528, 278 P.2d 1000, 1001; In re Malick's Estate (1951), 124 Mont. 585, 589, 228 P.2d 963, 965. In this case, there is no statute; there is no rule; there is

no procedureby which adefendant can appeal aprobation revocation 13by a court of limited jurisdiction to the district court and receivea trialdenovo with respect to thegrounds forrevocation. That we have now judicially created such a right from whole cloth does not give jurisdictionto thedistrict courts to entertain such an appeal. That right of appeal can be created and that jurisdiction granted only by statute or rule. Finally, I do not agree with the reasoning of Justice ~rieweiler'sspecial concurrence that, contrary to our opinion, a probation revocation proceeding 

### & a trial. This Court has heretofore defined the word "trial" in the context of criminal

cases: The word "trial,"when used in connection with criminal proceedings, means proceedings in open court, after the pleadings are finishedand it is otherwise ready,down to and including the rendition of the verdict. State v. Spotted Hawk (1899), 22 Mont. 33, 45, 55 P. 1026, 1028. See, also, Statev. Koch (1906), 33Mont. 490,496, 85 P. 272, 274; State v. Reed (1922), 65 Mont. 51, 56, 210 P. 756, 757; State v. Test (1922), 65Mont. 134, 137, 211 P. 217, 218;Rosebud County v. Flinn (1940), 109 Mont. 537, 541, 98 P.2d 330, 333, in accord. A "verdict" is: The formal decision or findingmade by a jury, impaneled and sworn for the trial of a cause, and reported to the court (andacceptedby it), upon thematters or questions duly submitted to them upon the trial. The definitive answer given by the jury to the court concerning the matters of fact committed to the jury for their deliberation and determination. Black's Law Dictionary, (5th ed. 1979), at 1398. (Citation omitted.) Whatever might the ttcommonly understood [definition of acriminal trial] in Anglo-American jurisprudence," that is clearly not how this Court has defined the term and how that term is commonly understood inMontana. The "trialnportion of a criminal case ends with the determination of the defendant's guilt or innocenceby the finder of fact and thepronouncement of sentence. SpottedHawk, 55 P. at 1028; §§ 46-17-311(2)

### ,MCA and 46-1-202

### (lo), MCA. See also, generally, Title 46, Chapters 16 and 17,MCA. Despite our best attempts to justify the unjustifiable, the long and short of it is that, we have plainly usurped the prerogative and function of the legislature to statutorily create and define theparameters of and procedures governing appeals from courts of limited jurisdiction to the district courts. Whether there should be a right of appeal under the circumstances of this case and, if so, what procedures should control the exercise of that right is not the issue here. That is for the legislature to decide, not this Court. The plain language of 46-17-311, MCA, does support the District Court's conclusion; the court was correct; its decision should be affirmed. Accordi

Justice Fred J. Weber concur