No. 86-502 and 86-528 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, NO. 86-502 

Plaintiff and Respondent, 

-vsJEFFREY WAYMIRE, 

Defendant and Appellant. 

NO. 86-528 

CITY OF BILLINGS, 

Plaintiff and Respondent, 

-vsCHESTER METCALF, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Brad L. Arndorfer, Billings, Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Atty. General, Helena 

Harold Hanser, County Attorney, Billings, Montana 

Gayle Stewart, Deputy County Atty., Billings 

Submitted on Briefs: Feb. 13, 1987 

Decided: April 16, 1987 

Filed: APR 1 6 1987 

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

Court. 

This is an appeal from the District Court of the 

Thirteenth Judicial District, Yellowstone County, Montana. 

The court dismissed an appeal from the Yellowstone justice 

court and city court of Billings, Montana. Defendants had 

been driving under the influence of alcohol. We reverse and 

remand. 

Defendant Jeffrey Waymire (Waymire) was arrested March 

29, 1986. He was issued a ticket for driving under the 

influence of alcohol (second offense), and for driving with a 

suspended or revoked license. 

There is a factual question whether he entered a plea 

of guilty or the plea was entered for him by the justice 

court. Accepting Waymire's version of the fact, he appeared 

in justice court April 1, 1986, was advised of the charge, 

the possible penalty, his right to remain silent, his right 

to an attorney, and his right to a jury or non-jury trial. 

He alleges he was then asked to enter a plea. He claims he 

stated to the judge he did not know the plea he wanted to 

enter and would exercise his right to remain silent. 

Apparently a ten or fifteen minute argument ensued, and it is 

Waymire's contention the justice court entered a guilty plea 

and sentenced him, although he claims not to have entered a 

plea. He received a sixty day sentence in the county jail. 

Waymire then contacted counsel who moved the justice 

court to set aside the guilty plea and to allow the plea of 

not guilty. The justice court refused to set aside the 

guilty plea. 

Waymire appealed the sentence and judgment to the 

District Court for a trial de novo, two days after his 

initial appearance in justice court. After several settings 
of trial, to which he did not object, on September 23, 1986, 

the State successfully moved to dismiss in the District Court 

for lack of jurisdiction. Thereafter, Waymire moved the 

District Court to reconsider its order granting the motion to 

dismiss, and provided a brief in support of the motion. The 

District Court remanded the matter to justice court for 

imposition of sentence. From these orders Waymire appeals. 

Defendant Chester Metcalf (Metcalf) was arrested for 

driving under the influence of alcohol (second offense) or 

driving with a blood alcohol content of .10 or more. He 

appeared in Billings city court, signed a waiver of rights, 

and entered a plea of guilty. His sentence was a fine of 

$500, he was ordered to attend DUI court school, and was 

sentenced to six months in jail with a portion to be 

suspended upon completion of the school. 

Apparently not satisfied with his sentence, Metcalf 

attempted to appeal to the District Court for a trial de 

novo. As in Waymire's case, the District Court dismissed the 

appeal for lack of jurisdiction. Metcalf now appeals the 

District Court's order and asks for a trial in the District 

Court. 

The issue whether a guilty plea in justice court or 

city court can be appealed to the District Court for a trial 

de novo is one of first impression. Authority from other 

jurisdictions is conflicting. Courts which do not allow an 

appeal reason that because a guilty plea is tantamount to a 

confession of judgment, there is nothing from which an appeal 

may be taken. In those jurisdictions which do not have 

general statutory or constitutional authority for appeal, 

courts which have allowed an appeal following a guilty plea 

do so primarily for policy reasons. Courts in jurisdictions 

where a trial de novo is permitted base their decision on 
general statutory authority regarding appeals, on state 

constitutional authority, or on policy. 

[TI he argument may well be made that it 

is a travesty upon justice that a 

defendant who has, with full knowledge of 

his rights, pleaded guilty and been 

sentenced in one court may thereafter 

change his mind and insist on his case 

being heard in another tribunal. 

Burris v. Davis (Ariz. 1935), 46 P.2d 1084, 1086. 

There is no constitutional right of appeal in Montana. 

The pertinent statute in this case is 5 46-17-311, MCA. It 

does not specifically allow appeal of a guilty plea, however. 

Section 5 46-17-311, MCA, states in pertinent part: 

(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. 

(2) A party may appeal to the district 

court by giving written notice of his 

intention to appeal within 10 days after 

judgment, except that the state may only 

appeal in the cases provided for in 

46-20-103. 

The legislature made no distinction between a guilty plea and 

a finding of guilt by the court or jury. 

We have held continuously for the last twenty-five 

years that the District Court and the Supreme Court have no 

appellate jurisdiction to review orders of the justice court. 

An appeal to the District Court for a trial de novo is the 

appellant's exclusive remedy for an appeal of justice court 

proceedings. Adair v. Lake County Justice Court (Mont. 

19841, 692 P.2d 13, 14, 41 St.Rep. 2241, 2242. We adopt the 

rationale of the Arizona court in Burris, supra, and hold 
that from the standpoint of reason, justice and public 

policy, appeals of a guilty plea in justice court or city 

court may be tried anew in District Court provided they are 

properly perfected. 

The statutory bounds of the District Court are not 

exceeded by a decision based on sound public policy of 

avoiding injustice. This holding does not give the District 

Court original jurisdiction of a DUI case in violation of 

§ 3-5-302, MCA. 

Therefore the judgment of the city court and of the 

justice court may be heard anew by the District Court. 

We concur: ,,---- 
Mr. Justice L. C. Gulbrandson dissenting. 

I respectfully dissent to the holding that "appeals of a 

guilty plea in justice court or city court may be tried anew 

in District Court. . . " 

The majority has adopted the rationale of 

Burris v. Davis (Ariz. 1935), 46 P.2d 1084 "from the 

standpoint of reason, justice and public policy." 

Article 2, Section 24 of the Constitution of Arizona, 

states "In criminal prosecutions, the accused shall 

have . . . the right to appeal in - all cases", (emphasis 

added) . Section 5153, R.C. (Arizona) 1928, states: "The 

defendant in any criminal action may appeal to the superior 

court . . ." (emphasis added). The Arizona Supreme Court in 

Burris, 46 P.2d at 1086, in the year 1935, stated: 

On the other hand, it is a well-known fact 

that the presiding magistrates in justice and 

police courts are seldom skilled in the law; that 

proceedings therein are apt to be summary in their 

nature; and that although defendants, technically 

speaking, may have been advised as to their rights 

in the premises, they are not as a rule fully 

conversant therewith, so that to deny the right of 

appeal where a plea of guilty has been entered 

might in some cases work a grievous injustice. 

After considering the matter from all angles, 

and in the light of the language - of - our 

constiTutiona1 and statutory provisions above 

quoted, we are ofthe opinion that under the law of 

Arizona an appeal may be taken from a judgment in a 

criminal case, notwithstanding the fact that a plea 

of guilty has been entered by the defendant. 

While a few of our inferior magistrates are men 

trained in the law, the greater number of them are 

not and cannot be so prepared. As a result, the 

proceedings in these inferior tribunals are 

naturally and necessarily more or less informal in 
their manner, and frequently conducted without 

strict observance of the rules of both procedural 

and substantive law. In the vast majority of 

judgments of such tribunals the results, although 

arrived at informally, are probably in conformity 

with substantial justice. There are, however, at 

times cases where, with the best intentions upon 

the part of the presiding magistrate, an injustice 

has been done. 

For all these reasons, we are of the opinion 

that the public policy -- of our state, as indicated 

ALL- bv thr~eo~le in the constitutional ~=vision and 

the Legislature -- in the sections 'of --- the CZ 

above quoted, is best carried out by a holding that 

the right of appeal under circumstances like those 

appearing in this case does exist. (Emphasis 

added. ) 

I agree with the holding of the Burris court, as of 1935, but 

I do not agree that the State of Montana has, by constitution 

or legislative action, a public policy as declared by the 

majority herein. 

What may have been true in Arizona in 1935, regarding 

untrained inferior magistrates, is certainly not indicative 

of the quality of training received by Montana Justices of 

the Peace and city judges in 1987. Under SS 3-10-202, 

3-10-203, and 3-11-204, MCA, those described officers are 

required to attend annual training sessions, supervised by 

the Montana Supreme Court, and I therefore believe the 

adoption of the Burris court rationale to be in error. 

The Montana Supreme Court, although not ruling upon the 

specified issue here, indicated doubt as to the appealability 

of a judgment entered upon a guilty plea in justice court in 

State v. La Rowe, 136 Mont. 591, 341 P.2d 906 (1959). 

Dissenting Justice Adair noted that a plea of guilty is 

itself a conviction, and is conclusi~re, and further noted 
that a voluntary guilty plea is a waiver of all the 

defendant's rights, including the right to a trial at all. 

Dissenting Justice Bottomly noted that a voluntary plea 

of guilty is a conviction but is different from a jury's 

verdict and a judgment entered thereon in that there is no 

statutory provision for an appeal from a judgment entered on 

a guilty plea, thus leaving the district court with no 

jurisdiction to entertain the purported appeal. 

To now hold that the defendant is entitled to a trial de 

novo in district court when there has been no trial in 

justice court, where there is no constitutional or statutory 

language for an appeal from a judgment based on a guilty 

plea, and where the declared public policy of Montana is to 

protect defendants' rights through a supervised course of 

training and education of justices of the peace and city 

judges is to defy "reason, justice and public pop%y". /' 

I would affirm the order of the 

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Justice ,/' 

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