NO. 93-351 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsROBERT DEAN ROGERS, OCT 2 5 1994 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William M. Brooke; 

Bozeman, Montana 

Moore, O'Connel Ref ling, 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Carol 

Schmidt, Assistant Attorney General, Helena, Montana 

Mike Salvagni, Gallatin County Attorney, Bozeman, 

Montana 

Filed: 

Submitted on Briefs: June 23, 1994 

Decided: October 25, 1994 

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Justice 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. He ultimately 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 

Justice Court Minutes reflect that the State presented evidence via 

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 

2 
and several Montana Supreme Court cases was appropriate and 

necessary in order to provide for an appeal de novo under these 

circumstances. Following a hearing, the District Court granted the 

State's motion. Rogers timely filed his notice of appeal to this 

Court. 

In granting the Staters motion to dismiss Rogers1 appeal, 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 

from which an appeal de novo may be taken pursuant 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 is whether the person has violated a condition of a 

suspended sentence. Section 46-18-203, MCA. Our cases recognize 

these basic differences between revocation proceedings and criminal 

trials. See, e.g., State v. Watts (1986), 221Mont. 104, 717 P.2d 

24; State v. Robinson (1980), 190 Mont. 145, 619 P.2d 813; State v. 

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 written notice of intention to 

appeal within 10 days "after a judgment is rendered following 

trial." As discussed above, a revocation hearing is not a criminal 

trial. 

Moreover, as the State points out, a lljudgment"--as the term 

is used 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 

the multi-purpose form utilized by the Justice Court indicates that 

the court "found defendant guiltyN of violating the conditions of 

his suspended sentence, 5 46-18-203, MCA, does not speak to 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 sentence by a preponderance of the evidence. 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 

conclusion take the legislature's intent into account. Appeals for 

de novo proceedings in district courts are statutorily provided for 

in criminal and civil matters pursuant to g 46-17-311 and Title 25, 

Chapter 33, MCA, respectively. We conclude that, taken together, 

these statutes reflect the legislature's intent to provide for 

appeals de novo to the district courts from all final justice court 

proceedings. 

The only remaining question, then, is whether the legislature 

intended appeals de novo from justice court revocations of 

suspended sentences to be 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 the right 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 

are matters over which the original sentencing court in a criminal 
case "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 the possibility of a loss 

of that liberty via a revocation proceeding in justice court. We 

have specifically recognized 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 justice court revocations of suspended sentences are available 

under, and governed by, 5 46-17-311, MCA. In this 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: A 
Justices 
Justice Terry N. Trieweiler specially concurring. 

I concur with the result of the majority opinion. However, I 

do not agree with all that is said in that opinion. 

Specifically, I disagree with the majority's and the dissent '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]he defendant may appeal to the district court by filing written 

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 includes all 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 State v. Ryan (1975), 166 Mont. 419, 533 P.2d 

1076; Statev. OppeIt (1979), 184 Mont. 48, 601 P.2d 394; Statev. Robinson 

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

as that term is commonly understood in Anglo-American 

jurisprudence. 

There is nothing really complicated or elusive about defining 

the terh "trial." Most first-year law students could recite that 

a trial is an adversary proceeding at which evidence is presented, 

and as a result of which, factual or legal issues are resolved. 

Definingthe term only becomes complicated when someone insists, as 

the dissent does, on arriving at the word's meaning by patching 

together the quilt work of resu:Lt-oriented decisions in which this 

Court has created a subspecies of Iftrial" known as the "criminal 

trialu or "criminal adjudication" for the purpose of avoiding at a 

revocation hearing the constitut:ional protections that apply to the 

initial determination of a defendant ' s guilt. However, those cases 

have no application here. We are not asked in this case to decide 

whether this revocation was a. t*criminal adjudication" for the 

purpose of applying due process, double jeopardy, or any other 

constitutional guarantee. We are simply asked in this case whether 

this adversary proceeding at wh.ich evidence 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. Sometimes by 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 understood to be "[tlhe official and authentic decision of 

a court of justice upon the respective rights and claims of the 

parties to an action or suit therein litigated and submitted to its 

determination." Black's Law Dictionary 977 (Rev. 4th ed. 1976) 

(citations omitted). 

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 is no 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 

statutory right to appeal from judgments entered in justice court, 

but not from amendments to a judgment entered in justice court 

simply because the Legislature did 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 is not available here." I agree, 

and that, necessarily, is where our inquiry in this case must end. 

Dissatisfied with the obvious, however, we then step through 

the looking glass and conclude that "taken together . . . (5 46-17- 

311 and Title 25, chapter 33, MCA] reflect the legislature's intent 

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 the basis 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 

repeated by this Court, and most recently so well 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 has been 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. (Citation omitted.) Where the statutory 

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 is no uncertainty or ambiguity 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, 

from the courts of limited jurisdiction to the district 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 statutorily provided 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 innocence and pronouncement of sentence following a 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. (Emphasis added.) 

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 from a Justice Court to the ~istrict court because 

an appeal is exclusivelv a statutory riqht. State v. 

Province (Mont. 1987). 1226 Mont. 425.1 735 P.2d 1128. 44 

St. Rep. 775, 776; stage v. ort tens on' (l978), 175 ~dnt. 

403, 574 P.2d 581. (Emphasis added.) 

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 procedure by which a defendant can appeal a probation revocation 

13 
by a court of limited jurisdiction to the district court and 

receive a trial de novo with respect to the grounds for revocation. 

That we have now judicially created such a right from whole cloth 

does not give jurisdiction to the district 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's special 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 finished and 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, State v. Koch (1906), 33 Mont. 490, 496, 85 P. 272, 274; 

State v. Reed (1922), 65 Mont. 51, 56, 210 P. 756, 757; State v. 

Test (1922), 65 Mont. 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 finding made by a jury, impaneled 

and sworn for the trial of a cause, and reported to the 

court (and accepted by it), upon the matters 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 a 
criminal trial] in Anglo-American jurisprudence," that is clearly 

not how this Court has defined the term and how that term is 

commonly understood in Montana. The "trialn portion of a criminal 

case ends with the determination of the defendant's guilt or 

innocence by the finder of fact and the pronouncement of sentence. 

Spotted Hawk, 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 the parameters 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