NO. 95-560

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DAVID MORA,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Russell C. Fagg, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Carrie L. Garber, Deputy Public Defender, Billings

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Jennifer Anders, Ass't Attorney General,

Helena, Montana

Dennis Paxinos, Yellowstone County Attorney

Margaret R. Gallagher, Deputy County Attorney

Billings, Montana

Filed:

Submitted on Briefs: June 13, 1996

Decided: August 6, 1996
Justice Karla M. Gray delivered the Opinion of the Court.

David Mora (Moral appeals from an order of the Thirteenth

Judicial District Court, Yellowstone County, dismissing his appeal

from a Justice Court conviction. We reverse and remand.

The sole issue on appeal is whether the District Court erred

in concluding that it did not have jurisdiction over Mora's appeal.

On January 21, 1995, Mora was arrested on a charge of driving

under the influence of alcohol (DUI). Mora appeared before the

Yellowstone County Justice Court on February 6, 1995, and entered

a plea of not guilty. The Justice Court scheduled a nonjury trial

for May 22, 1995. Mora's counsel appeared for the trial on that

date, but Mora did not. The Justice Court denied Morals counsel's

motion for a continuance, proceeded with the bench trial in

absentia, and found Mora guilty of DUI. In an order dated May 30,

1995, the Justice Court reiterated that it had found Mora guilty of

DLJI on May 22, 1995, and ordered that Mora "complete the ACT

program at the Mental Health Center and a pre-sentence chemical

dependency evaluation and return to Court for sentencing on July

12, 1995 . . .m The ACT program is an ,alcohol information course

which persons convicted of DUI are required to attend pursuant to

§ 61-8-714., MCA.

Mora filed a notice of appeal from the Justice Court to the

District Court on the same day the Justice Court entered its order.

The District Court subsequently dismissed Mora's appeal by order

dated June 21, 1995, on the basis that the Justice Court had not

yet sentenced Mora and, therefore, the appeal was premature. The

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District Court remanded Mora's case to the Justice court for

sentencing.

Mora moved for reconsideration, arguing that the Justice Court

had sentenced him when it ordered that he complete the ACT program

prior to formal sentencing and, therefore, his notice of appeal to

the District Court was not premature. In its order on the motion,

the District Court noted that § 61-8-714(4), MCA (1993), authorizes

a court to order drug or alcohol treatment, as well as the required

information course, for a defendant's first DUI conviction; it

reasoned therefrom that a court must have the ability to order

alcohol information and assessment before formal sentencing for

purposes of determining whether treatment is appropriate. On that

basis, the District Court determined that, in ordering Mora to

complete the ACT program and a presentence chemical dependency

evaluation, the Justice Court did not sentence Mora, but only

required that he provide the information it needed to properly

sentence him in the future. In addition, the court relied on State

v. West (1992), 252 Mont. 83, 826 P.2d 940, in determining that

alcohol counseling should not be considered part of the sentence

when analyzing jurisdictional questions because it is not ordered

for a punitive purpose. After concluding that the Justice Court's

order did not constitute a sentence, the District Court reaffirmed

its earlier order dismissing Morals appeal and remanded the case to

Justice Court for sentencing. Mora appeals.

Did the District Court err in concluding that it did not have

jurisdiction over Mora's appeal?

A defendant in a criminal case may appeal from a justice court

3
to a district court by filing a notice of appeal within 10 days

after the justice court renders a judgment. Section 46-17-311(2),

MCA. A judgment includes the sentence pronounced by the court;

thus, the imposition of a sentence and final judgment is a

prerequisite for an appeal from justice court to district court.

State v. Todd (1993), 262 Mont. 108, 111, 863 P.2d 423, 425

(citations omitted). A notice of appeal which is filed before the

justice court pronounces sentence is premature and does not vest

subject matter jurisdiction in the district court. Todd 863 -I P.2d

at 425.

Mora contends that the District Court erred when it determined

that the Justice Court did not pronounce sentence by ordering him

to complete the ACT program and receive a presentence chemical

dependency evaluation. He argues that no authority exists for a

two-step sentencing procedure in which a defendant is ordered to

complete an alcohol information course and evaluation and then to

return to court for additional sentencing. Mora asserts that such

a procedure impermissibly circumvents this Court's holding in

Rivera v. Eschler (1989), 235 Mont. 350, 767 P.2d 336.

The State of Montana (State) contends that, although the

holding in Rivera prohibits a justice court from ordering treatment

after a valid sentence has been imposed, the Justice Court in the

present case avoided that result by ordering Mora to get an alcohol

dependency evaluation before formally sentencing him to treatment.

The State asserts that an order to complete a presentence alcohol

dependency evaluation does not impose a sentence and, therefore,

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the Justice Court retained the ability to later sentence Mora to

follow any treatment recommendations that may be made after he

attends the ACT program.

Section 61-8-714, MCA, is the DUI sentencing statute and the

1993 version of the statute applies to Mora's DUI conviction;

subsections (1) through (3) provide the parameters for jail time

and fines within which a court must sentence a person for first and

subsequent DUI convictions. The portion of the statute at issue

here provides that

[iln addition to the punishment provided in this section,

regardless of disposition, the defendant shall complete

an alcohol information course at an alcohol treatment

program approved by the department of corrections and

human services, which may, in the sentencing court's

discretion and upon recommendation of a certified

chemical dependency counselor, include alcohol or drug

treatment, or both. On conviction of a second or

subsequent offense under this section, in addition to the

punishment provided in this section, regardless of

disposition, the defendant shall complete an alcohol

information course which must include alcohol or

drug treatment, or both. The treatment provided to

the defendant at a treatment program must be at a level

appropriate to the defendant's alcohol problem, as

determined by the judge based upon the recommendation

from the certified chemical dependency counselor.

Section 61-E-714(4), MCA (1993). By its clear language, the

statute mandates that, as part of a DUI sentence, the court must

require the defendant to complete an alcohol information course.

On a first DUI conviction, the court may--in its discretion--also

require that alcohol treatment be included in the alcohol

information course, but only if a certified chemical dependency

counselor recommends such treatment. Thus, while the requirement

that the alcohol information course be completed is part of the

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sentence, a court necessarily must obtain a chemical dependency

evaluation and recommendation prior to sentencing if it is inclined

to consider requiring alcohol treatment as part of the sentence.

Although a presentence evaluation is in the nature of a presentence

investigation which, pursuant to § 46-18-111, MCA, may only be

ordered by a district court, § 61-8-714(4), MCA (1993), clearly

authorizes a court sentencing a defendant convicted of a first

offense DUI to order and obtain a presentence chemical dependency

evaluation.

Here, the Justice Court ordered Mora to 1) complete the ACT

program; 2) complete a presentence chemical dependency evaluation;

and 3) return for sentencing. Under § 61-e-714(4), MCA (1993), the

requirement that Mora complete the alcohol information course

clearly is a sentence.

If the Justice Court desired to consider including alcohol

treatment in Mora's sentence, the statute required it to obtain a

chemical dependency evaluation and recommendation prior to imposing

any part of the sentence, but not concurrently with imposing a

sentence. Indeed, the Justice Court may have attempted to do so

here by requiring Mora to obtain the evaluation and then return for

sentencing. These two steps, without the earlier order sentencing

Mora to complete the alcohol information course, would have enabled

the Justice Court to obtain the desired evaluation and then

determine whether to include alcohol treatment in Mora's sentence.

We conclude, however, that the initial sentence that Mora complete

the course negated any further sentencing authority in the court.

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Rivera does not resolve the precise issue presently before us,

but it clearly supports our conclusion. In Rivers., the defendant

was convicted of DUI and the justice court included in the

defendant's sentence a requirement that she attend a DUI school and

complete "treatment as necessary." Rivera, 767 P.2d at 337. When

the defendant completed the counseling portion of the DUI school,

her counselor recommended that she receive in-patient alcohol

treatment. Rivera, 767 P.2d at 337. The justice court then

modified the defendant's sentence, ordering her to follow the

recommendations of the counselor and adding certain specific

requirements to the sentence. Rivera, 767 P.2d at 337. We held

that 5 61-f-714, MCA, the DUI sentencing statute, contemplated that

all punishment and treatment be contained in the original order.

Rivera, 767 P.2d at 338. Thus, when the justice court's original

order required the defendant to complete DUI school and treatment

as necessary, it imposed a valid sentence and, once that sentence

was imposed, the justice court had no authority to later modify it.

Rivera, 767 P.2d at 338.

Nor does West, on which the District Court relied, support the

State's argument that the Justice Court did not sentence Mora when

it ordered that he complete the ACT program. The defendant in West

argued, in part, that the justice court did not have original

jurisdiction over his case because the sentence for his DUI

conviction included a requirement that he attend an alcohol

treatment program, which program potentially could exceed the oneyear maximum penalty for a misdemeanor offense. -,West 826 P.2d at

7
946. This Court held that including alcohol treatment in a

defendant's DUI sentence did not increase the offense to a felony,

even though there was no time limit on length of the treatment,

because the purpose of requiring a defendant to attend treatment is

to protect the public from DUI offenders rather than to punish the

defendant. West, 826 P.2d at 946. We also held in WeSt that the

purpose of alcohol treatment is to try to rehabilitate the offender

"in an effort to reduce the number of fatalities related to

drinking and driving on Montana's roads and highways." -,West 826

P.2d at 946. Nowhere in West did we state or indicate that alcohol

treatment or counseling is not part of a DUI sentence; we simply

held that treatment serves the purpose of rehabilitation rather

than punishment within the sentence. The West holding merely

reiterates Montana's statutorily stated correctional policy, which

is "to protect society by preventing crime through punishment and

rehabilitation of the convicted." See 5 46-18-101(2), MCA. Thus,

the District Court misapplied West in concluding that alcohol

counseling and treatment should not be considered part of the

sentence when determining jurisdictional issues.

The record before us reflects that the Justice Court sentenced

Mora when it ordered him to complete the alcohol information course

which, pursuant to § 61-8-714(4), MCA (1993), is a required part of

DUI sentences. At that point, the Justice Court lost jurisdiction

to later modify that sentence. Rivera, 767 P.2d at 338.

Additionally, once the Justice Court imposed sentence, judgment had

been rendered and the sentence and final judgment which are the

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prerequisites for an appeal from justice court to district court

had been fulfilled. - I Todd 863 P.2d at 425. We hold, therefore,

that Mora's notice of appeal from the Justice Court was not

premature and that the District Court erred in concluding that it

did not have jurisdiction over the appeal and in dismissing the

appeal.

Reversed and remanded for further proceedings consistent with

this opinion.

aa

Justices