DA 06-0730

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 317

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

RONALD ALLAN CLARK,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DC 2006-254A

Honorable Holly Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Andrew J. Breuner, Law Office of Andrew J. Breuner, Gallatin Gateway,

Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Jonathan M. Krauss,

Assistant Attorney General, Helena, Montana

Paul Luwe, Bozeman City Attorney, Susan Wordal, Assistant 

City Attorney, Bozeman, Montana

Submitted on Briefs: July 25, 2007

 Decided: September 12, 2008

Filed:

__________________________________________

Clerk

September 12 2008
2

Justice James C. Nelson delivered the Opinion of the Court.

¶1 Ronald Allan Clark appeals from the order of the District Court for the Eighteenth 

Judicial District, Gallatin County, dismissing his appeal from the Bozeman Municipal 

Court. We affirm.

BACKGROUND

¶2 On July 7, 2005, Clark was cited by a City of Bozeman police officer with 

operating a motor vehicle without proof of insurance, second offense, a misdemeanor, in 

violation of § 61-6-302, MCA. He pleaded not guilty at his initial appearance in 

Municipal Court on July 21, 2005. Following four continuances, three of which were 

requested by Clark, the court set a bench trial for June 12, 2006. Clark failed to appear 

for trial on this date, and the court tried and convicted him in absentia.

¶3 After finding Clark guilty, the court solicited a sentencing recommendation from 

the prosecutor. Thereupon, the court stated that “the sentence of the court” was 6 months 

in the Gallatin County Detention Center, all suspended, a $450 fine, and $120 in costs. In 

addition, the court listed a number of conditions on “the sentence imposed this 

afternoon.” Finally, the court required Clark to surrender to the Department of Motor 

Vehicles, for a period of 90 days, the license plates and registration of the vehicle he had 

been driving. The court’s written sentencing order, dated June 12, 2006, is identical to 

the court’s oral sentence.

¶4 Also on June 12, 2006, the Municipal Court issued a bench warrant due to Clark’s 

failure to appear. The bench warrant was served in Missoula on or about July 11, 2006, 

and Clark appeared before the Municipal Court on July 14, 2006. At this time, the court 
3

informed Clark of “the sentence that was imposed” on June 12 (emphasis added). 

However, in explaining the 90-day suspension of the license plates and registration, the 

court stated that the vehicle Clark had been driving “cannot be operated for 90 days once 

this sentence is imposed, which is now, today, even though this occurred on June 

12th. . . . You didn’t know about it, so it’s imposed today” (emphasis added). 

Furthermore, the court informed Clark that “any period of appeal that might exist begins 

to run from today.” In this regard, we note that the Uniform Municipal Court Rules of 

Appeal to District Court (“U.M.C.R.App.”; see Title 25, Chapter 30, MCA) provide that 

an appeal from a judgment in a criminal case shall be taken by filing a timely notice of 

appeal in the municipal court “within 10 days” (not including intermediate Saturdays, 

Sundays, and legal holidays). U.M.C.R.App. 4(a), 5(b)(3), 20(a); see also § 46-17-

311(2), MCA.

¶5 Clark, proceeding pro se, filed a combined Notice of Appeal and Request for 

Public Defender on July 28, 2006—46 days after the Municipal Court found him guilty 

and first announced his sentence, and 10 business days after he appeared on the bench 

warrant and was informed of the sentence. The Municipal Court transferred the file to 

District Court on August 15, 2006. That same day, the District Court gave notice that it 

had received the file and that, pursuant to U.M.C.R.App. 14(a), Clark had 15 days in 

which to file a brief. Notwithstanding, on August 21, 2006, the District Court sua sponte 

issued an order dismissing Clark’s appeal on the ground that his appeal from the 

Municipal Court was untimely.

¶6 Clark, now represented by counsel, appeals from the District Court’s order.
4

ISSUE

¶7 The sole issue raised by Clark is whether the District Court erred in its 

determination that Clark’s appeal from the Municipal Court was untimely.

STANDARD OF REVIEW

¶8 To determine whether Clark’s appeal was untimely, it is necessary to determine 

when Clark’s sentence was imposed by the Municipal Court. This latter determination 

involves the application of controlling legal principles to undisputed factual 

circumstances. As such, it is a mixed question of law and fact, which we review de novo. 

See State v. Warclub, 2005 MT 149, ¶¶ 21, 23, 327 Mont. 352, ¶¶ 21, 23, 114 P.3d 254, 

¶¶ 21, 23. Similarly, the interpretation and construction of a rule of procedure is a matter 

of law, which we review de novo, determining whether the court’s interpretation and 

construction of the rule is correct. Miller v. District Court, 2007 MT 149, ¶ 22, 337 

Mont. 488, ¶ 22, 162 P.3d 121, ¶ 22.

DISCUSSION

¶9 Did the District Court err in its determination that Clark’s appeal from the 

Municipal Court was untimely?

¶10 An appeal from a municipal court in a criminal case may be taken only from a 

final judgment of conviction and orders after judgment. U.M.C.R.App. 5(b)(2); 

§ 46-20-104(1), MCA. A judgment is not “final” until the sentence is pronounced by the 

court. Section 46-1-202(11), MCA; see also State v. Bonamarte, 2006 MT 291, ¶ 6, 334 

Mont. 376, ¶ 6, 147 P.3d 220, ¶ 6. The oral pronouncement of sentence is the legally 

effective sentence. State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, ¶ 40, 957 P.2d 9, 
5

¶ 40. However, the period for filing the notice of appeal runs from the date on which the 

court enters the written judgment and sentence following oral pronouncement. See

Bonamarte, ¶ 9.

1

 Lastly, as noted above, an appeal from a municipal court judgment in a 

criminal case must be taken within 10 days (not including intermediate Saturdays, 

Sundays, and legal holidays) after the judgment and sentence are entered. U.M.C.R.App. 

4(a), 5(b)(3), 20(a).

¶11 The parties do not dispute these rules, nor do they dispute that Clark’s notice of 

appeal was filed within 10 business days after July 14, 2006. Rather, they disagree as to 

what date the period for filing Clark’s notice of appeal began to run. More specifically, 

they disagree as to when the Municipal Court’s final judgment was entered.

¶12 Clark contends that his sentence was orally pronounced on July 14, 2006, when he 

appeared on the bench warrant. He points out that the Municipal Court explicitly stated 

that it was imposing sentence that day. He acknowledges that the court, at one point, 

referred to the sentence previously announced on June 12 as “the sentence that was 

imposed,” but he maintains that what the court meant was that it had “determined” the 

terms of his sentence on June 12 and that it was “imposing” that sentence as of July 14. 

Moreover, he points out that the Municipal Court specifically told him that “any period of 

appeal that might exist begins to run from today”—i.e., from July 14, 2006. Thus, Clark 

 

1 Clark and the State both rely on State v. Mortenson, 175 Mont. 403, 574 P.2d 

581 (1978), for the proposition that the period for filing a notice of appeal runs from the 

date on which the court orally renders judgment in open court. See Mortenson, 175 

Mont. at 405, 574 P.2d at 582; see also State v. Tweedy, 277 Mont. 313, 316-17, 922 P.2d 

1134, 1135-36 (1996). While this may have been true at the time Mortenson and Tweedy

were decided, it is no longer a correct statement of the law. See Bonamarte, ¶ 9.
6

maintains that his sentence was not entered until July 14 and, thus, that his time for filing 

his notice of appeal began to run on that date.

¶13 In response, the State insists that oral pronouncement of sentence occurred on June 

12, 2006. The State points out that the Municipal Court did not issue an order following 

Clark’s conviction “setting a sentencing hearing or otherwise reserving sentence for the 

personal appearance of Clark.” The State also points out that “ ‘[i]n all misdemeanor 

cases, the verdict may be returned and the sentence imposed without the defendant being 

present’ ” (emphasis added; quoting § 46-16-123(1), MCA). Thus, the State maintains 

that Clark’s sentence was pronounced in open court on June 12 “regardless of whether 

Clark was informed of the sentence at the time.” As for Clark’s July 14, 2006 appearance 

in the Municipal Court, the State contends that this hearing was “as a result of a bench 

warrant” and was “not, in name, form, or substance, a ‘sentencing hearing.’ ” In 

addition, the State asserts that the Municipal Court “was without authority to extend the 

rules of procedure and allow additional time for Clark to appeal his sentence.”

¶14 A critical issue is readily apparent from the parties’ arguments and the facts of this 

case. Clark contends that his sentence was not imposed until he appeared in court on July 

14, 2006, whereas the State contends that his sentence was imposed in his absence on 

June 12, 2006. Thus, in determining the legally effective date of Clark’s sentence, the 

question arises as to whether a defendant can lawfully be sentenced in absentia on a 

misdemeanor offense. In this regard, we note that this Court held in Lane that “the 

sentence orally pronounced from the bench in the presence of the defendant is the legally 

effective sentence and valid, final judgment.” Lane, ¶ 40 (emphasis added). This holding 
7

rested on a number of considerations. We noted that a criminal defendant has a 

constitutional right to be present in the courtroom when his sentence is pronounced. See 

Lane, ¶ 31. Furthermore, we observed that a number of Montana statutes—namely, 

§§ 46-16-121(1), 46-16-123(2), and 46-18-115, MCA—implement this constitutional

right by requiring the defendant’s presence at sentencing and by giving him an 

opportunity to respond before the trial court imposes the sentence. See Lane, ¶¶ 32-33. 

Yet, §§ 46-16-121(1) and -123(2), MCA, are specific to felonies; and in contrast to these 

two statutes, § 46-16-123(1), MCA, authorizes the sentencing of a defendant in absentia 

on a misdemeanor offense. Clark has not challenged § 46-16-123(1), MCA, in light of 

Lane; therefore, we will assume, for purposes of this case, that Clark could lawfully be 

sentenced in absentia. Our holding herein should not be construed as expressing an 

opinion either way on this question.

¶15 Given this assumption, we agree with the State that the Municipal Court 

pronounced a legally effective sentence immediately following Clark’s conviction on 

June 12, 2006. The court did not set a sentencing hearing or otherwise suggest that it 

would impose sentence once Clark appeared on the bench warrant. Rather, the audio 

recording of the June 12 proceeding establishes that the court solicited a sentencing 

recommendation from the prosecutor and, immediately thereafter, announced the 

specifics of Clark’s sentence. Among other things, the court ordered that Clark comply 

with “the conditions of the sentence imposed this afternoon” (emphasis added). That 

same day, the court entered a written sentencing order which contained terms identical to 

the court’s oral sentence. There is no indication anywhere in the record of the events of 
8

June 12 that the court was postponing pronouncement of Clark’s sentence until he 

appeared on the bench warrant.

¶16 Indeed, even at the outset of the July 14 hearing, the court informed Clark of “the 

sentence that was imposed” on June 12 (emphasis added). It was not until the court 

explained the 90-day suspension of the license plates and registration that the court stated 

it was imposing Clark’s sentence “now, today, even though this occurred on June 12th.” 

The court reasoned that Clark “didn’t know about it, so it’s imposed today”; however, 

this attempt to vacate and reimpose the sentence pronounced on June 12 was legally 

ineffective. As the State points out, once a valid sentence has been pronounced, the court 

imposing that sentence has no authority to modify or change it, except as provided by 

statute. See State v. Megard, 2006 MT 84, ¶ 17, 332 Mont. 27, ¶ 17, 134 P.3d 90, ¶ 17 

(citing State v. Fertterer, 260 Mont. 397, 400, 860 P.2d 151, 154 (1993)). Section 

46-18-116, MCA, sets forth grounds for modifying or correcting a sentence or judgment, 

but none of them applies here.

¶17 Given these facts, we hold that Clark’s sentence was pronounced and entered on 

June 12, 2006. Accordingly, pursuant to U.M.C.R.App. 4(a), 5(b)(3), and 20(a), Clark 

had until June 26, 2006, to file his notice of appeal. He filed his notice of appeal on July 

28, 2006. Accordingly, we conclude that the District Court did not err in its 

determination that Clark’s appeal from the Municipal Court was untimely.

¶18 Affirmed.

/S/ JAMES C. NELSON
9

We Concur:

/S/ KARLA M. GRAY

/S/ JOHN WARNER

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

/S/ BRIAN MORRIS
10

Justice James C. Nelson, specially concurring.

¶19 I believe that the Court’s Opinion correctly and fully resolves the specific issue 

presented by Clark—namely, whether the District Court erred in its determination that his 

appeal from the Municipal Court was untimely. However, the obvious question left 

unanswered by our Opinion—because Clark failed to raise it—is whether it was 

appropriate for the District Court to dismiss Clark’s untimely appeal sua sponte. In view 

of recent decisions of this Court and the United States Supreme Court, I write separately 

to explain why, in my view, the ground provided by the District Court for dismissing 

Clark’s appeal was incorrect.

¶20 The District Court dismissed Clark’s appeal in light of the time prescription 

contained in U.M.C.R.App. 5(b)(3). The court reasoned that by virtue of this rule and the 

untimely filing of Clark’s notice of appeal, it did not have “jurisdiction” over his appeal. 

In other words, the District Court assumed that its jurisdiction over appeals from 

municipal court judgments is circumscribed by U.M.C.R.App. 5(b)(3). There is support 

for this reasoning in our caselaw, as we have, not infrequently, described the filing 

deadlines for notices of appeal as “mandatory and jurisdictional.”1

 

1

See e.g. Colmore v. Uninsured Employers’ Fund, 2005 MT 239, ¶ 39, 328 Mont. 

441, ¶ 39, 121 P.3d 1007, ¶ 39; State v. Tweed, 2002 MT 286, ¶ 11, 312 Mont. 482, ¶ 11, 

59 P.3d 1105, ¶ 11; In re Marriage of Yeanuzzi, 2001 MT 171, ¶ 5, 306 Mont. 163, ¶ 5, 

30 P.3d 1095, ¶ 5; Joseph Eve & Co. v. Allen, 284 Mont. 511, 514, 945 P.2d 897, 899 

(1997); MCI Telecommunications Corp. v. Dept. of Public Service Regulation, 260 Mont. 

175, 177, 858 P.2d 364, 366 (1993); First Sec. Bank of Havre v. Harmon, 255 Mont. 168, 

172, 841 P.2d 521, 524 (1992); Anderson v. Bashey, 241 Mont. 252, 255, 787 P.2d 304, 

306 (1990); O’Connell v. Heisdorf, 202 Mont. 89, 91, 656 P.2d 199, 200 (1982); Price v. 

Zunchich, 188 Mont. 230, 235, 612 P.2d 1296, 1299 (1980); Leitheiser v. Montana State 

Prison, 161 Mont. 343, 346, 505 P.2d 1203, 1205 (1973) (per curiam); McVay v. McVay, 
11

¶21 In more recent cases, however, we have acknowledged that “[j]urisdiction is a 

word of many, too many, meanings” and that we, along with other courts, sometimes 

have been “profligate” in our use of the term. DeShields v. State, 2006 MT 58, ¶ 10, 331 

Mont. 329, ¶ 10, 132 P.3d 540, ¶ 10 (citations and internal quotation marks omitted); see 

also Davis v. State, 2008 MT 226, ¶ 23, 344 Mont. 300, ¶ 23, 187 P.3d 654, ¶ 23 (noting 

cases in which we have been “less than meticulous” in this regard); Ballas v. Missoula 

City Bd. of Adjustment, 2007 MT 299, ¶ 15, 340 Mont. 56, ¶ 15, 172 P.3d 1232, ¶ 15 

(noting that the broad nature of the term has led to “confusion” as to its meaning). 

Accordingly, in an effort to promote clarity in the actual meaning of “jurisdiction,” we 

have been more thoughtful and cautious in our use of this term and have disapproved or 

overruled prior misusages. See e.g. Davis, ¶¶ 12-23; State v. Garrymore, 2006 MT 245, 

¶ 10 n. 1, 334 Mont. 1, ¶ 10 n. 1, 145 P.3d 946, ¶ 10 n. 1; Miller v. District Court, 2007 

MT 149, ¶¶ 42-44, 337 Mont. 488, ¶¶ 42-44, 162 P.3d 121, ¶¶ 42-44. Correspondingly, it 

is necessary that we reconsider whether the filing deadline on a notice of appeal is truly 

“jurisdictional” or merely a categorical claim-processing rule.

¶22 In Kontrick v. Ryan, 540 U.S. 443, 124 S. Ct. 906 (2004), the Supreme Court 

observed that classifying time prescriptions, even rigid ones, as “jurisdictional” can be 

 

128 Mont. 31, 34, 270 P.2d 393, 394 (1954); State ex rel. Clark v. District Court, 128 

Mont. 526, 528, 532, 278 P.2d 1000, 1001, 1003 (1954); State ex rel. Reid v. District 

Court, 126 Mont. 489, 492, 499, 255 P.2d 693, 695, 698 (1953); State ex rel. Albrecht v. 

District Court, 126 Mont. 178, 180, 246 P.2d 1035, 1036 (1952). We have also said 

more generally that statutes “relating to appeals” are “mandatory and jurisdictional.” See 

e.g. State v. Kempin, 2001 MT 313, ¶ 8, 308 Mont. 17, ¶ 8, 38 P.3d 859, ¶ 8; State v. Fox, 

2001 MT 209, ¶ 12, 306 Mont. 353, ¶ 12, 34 P.3d 484, ¶ 12; State v. Feight, 2001 MT 

205, ¶ 14, 306 Mont. 312, ¶ 14, 33 P.3d 623, ¶ 14; Montana Power Co. v. Dept. of Public 

Service Regulation, 218 Mont. 471, 479, 709 P.2d 995, 999 (1985).
12

“confounding.” Kontrick, 540 U.S. at 455, 124 S. Ct. at 915. The Court suggested that 

“[c]larity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for 

claim-processing rules, but only for prescriptions delineating the classes of cases 

(subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a 

court’s adjudicatory authority.” Kontrick, 540 U.S. at 455, 124 S. Ct. at 915; accord 

Eberhart v. United States, 546 U.S. 12, 16, 126 S. Ct. 403, 405 (2005) (per curiam). 

Similarly, we emphasized in Miller that “[i]t is important not to confuse categorical time 

prescriptions with jurisdictional provisions.” Miller, ¶ 43. Jurisdiction involves the 

fundamental power and authority of a court to hear and decide an issue; as such, it cannot 

be forfeited, waived, or conferred by the consent of the parties. Miller, ¶¶ 43, 44 (citing 

Stanley v. Lemire, 2006 MT 304, ¶ 30, 334 Mont. 489, ¶ 30, 148 P.3d 643, ¶ 30, In re 

Marriage of Miller, 259 Mont. 424, 427, 856 P.2d 1378, 1380 (1993), and Arbaugh v. 

Y & H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 1244 (2006)). By contrast, categorical 

time prescriptions are inflexible or rigid—but nonjurisdictional—claim-processing rules, 

which are unalterable if timely asserted by a party but can be forfeited if the party waits 

too long to raise the point. Miller, ¶ 44 (citing Kontrick, 540 U.S. at 454-55, 456, 124 

S. Ct. at 915, 916, and Eberhart, 546 U.S. at 19, 126 S. Ct. at 407).

¶23 Of particular relevance to the case at hand, the Supreme Court stated in Kontrick

that time limitations contained in rules of court are not jurisdictional. See Kontrick, 540 

U.S. at 453-54, 124 S. Ct. at 914; see also Eberhart, 546 U.S. at 15-19, 126 S. Ct. at 404-

07; United States v. Sadler, 480 F.3d 932, 936-37 (9th Cir. 2007). Indeed, “it is 

axiomatic,” the Court observed, that court-prescribed rules of practice and procedure “do 
13

not create or withdraw federal jurisdiction.” Kontrick, 540 U.S. at 453, 124 S. Ct. at 914 

(alteration and internal quotation marks omitted). Along these same lines, we stated in 

Miller that a rule adopted pursuant to this Court’s constitutional rulemaking authority is 

not jurisdictional. At issue in that case was a rule applicable to proceedings in the district 

courts. We noted that the subject-matter jurisdiction of the district courts is established 

by Article VII, Section 4 of the Montana Constitution and that this Court’s authority 

under Article VII, Section 2(3) to “make rules governing . . . practice and procedure” in 

the district courts does not enable us to withdraw the jurisdiction of the district courts as 

defined in the Montana Constitution. See Miller, ¶ 45.2

¶24 Given these clarifications in this Court’s and the Supreme Court’s recent 

jurisprudence concerning the meaning of jurisdiction, the District Court’s reasoning that 

it did not have “jurisdiction” over Clark’s appeal because his notice of appeal was 

untimely under U.M.C.R.App. 5(b)(3) was incorrect. Jurisdiction is conferred on courts 

only by the Constitution or statutes adopted pursuant to the Constitution. Pinnow v. 

Montana State Fund, 2007 MT 332, ¶ 20, 340 Mont. 217, ¶ 20, 172 P.3d 1273, ¶ 20. 

U.M.C.R.App. 5(b)(3), however, was adopted by order of this Court on March 19, 1998. 

Court-prescribed rules of practice and procedure simply cannot create or withdraw 

jurisdiction. Kontrick, 540 U.S. at 453, 124 S. Ct. at 914; Miller, ¶ 45. Thus, 

U.M.C.R.App. 5(b)(3) is not a jurisdictional limitation. Cf. Sadler, 480 F.3d at 938-40 

 

2

For these same reasons, the suggestion in Rule 4 of the Rules of Appellate 

Procedure that the timeliness of a notice of appeal is “jurisdictional” is unsustainable. 

This Court’s appellate jurisdiction is established by Article VII, Section 2 of the Montana 

Constitution. While we “may make rules governing appellate procedure,” Mont. Const. 

art. VII, § 2(3), we may not, by rule, expand or withdraw our appellate jurisdiction.
14

(holding, in light of Kontrick and Eberhart, that the time limitation under Fed. R. App. P. 

4(b) for filing a notice of appeal in a criminal case is not jurisdictional).3

¶25 The State points out that the Montana Code contains a statutory time prescription 

for appeals from courts of limited jurisdiction. Specifically, § 46-17-311(2), MCA, states 

that “[t]he defendant may appeal to the district court by filing written notice of intention 

to appeal within 10 days after a judgment is rendered following trial or the denial of the 

motion to withdraw a plea as provided in 46-17-203(2)(b).” However, statutory time 

limitations are not necessarily jurisdictional. For instance, the Supreme Court held in 

Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856 (2004), that a statutory provision 

prescribing the timing and content of an application for legal fees is not jurisdictional. 

See Scarborough, 541 U.S. at 413-14, 124 S. Ct. at 1864-65. The Court noted that the 

provision “does not describe what ‘classes of cases’ the [Court of Appeals for Veterans 

Claims] is competent to adjudicate; instead, the section relates only to postjudgment 

proceedings auxiliary to cases already within that court’s adjudicatory authority.” 

Scarborough, 541 U.S. at 414, 124 S. Ct. at 1865 (citation omitted). Likewise, as a 

general rule, a statute of limitations is not jurisdictional but, rather, is an affirmative 

 

3

In Bowles v. Russell, ___ U.S. ___, 127 S. Ct. 2360 (2007), the Supreme Court 

concluded that the time limitation in Fed. R. App. P. 4(a) for filing a notice of appeal in a 

civil case is jurisdictional. However, in reaching this conclusion, the Court observed that 

Rule 4(a) implements a statutory provision (in particular, 28 U.S.C. § 2107), see Bowles, 

127 S. Ct. at 2363-65, and that the United States Constitution gives Congress the power 

to determine the jurisdiction of the lower federal courts, see Bowles, 127 S. Ct. at 2365-

66. This latter point is a critical distinction between time prescriptions contained in 

federal statutes and time prescriptions contained in state statutes, since the jurisdiction of 

Montana’s district courts is established by the Montana Constitution, not by the 

Legislature. See Miller, ¶ 45; Mont. Const. art. VII, § 4.
15

defense that is subject to forfeiture and waiver. See John R. Sand & Gravel Co. v. United 

States, ___ U.S. ___, 128 S. Ct. 750, 753 (2008); Day v. McDonough, 547 U.S. 198, 205, 

126 S. Ct. 1675, 1681 (2006); Marias Healthcare Services, Inc. v. Turenne, 2001 MT 

127, ¶ 9, 305 Mont. 419, ¶ 9, 28 P.3d 491, ¶ 9; Davis, ¶¶ 14-15. Time prescriptions that 

are subject to equitable exceptions are similarly not jurisdictional. See e.g. Zipes v. Trans 

World Airlines, Inc., 455 U.S. 385, 392-98, 102 S. Ct. 1127, 1132-35 (1982); Diaz v. 

Kelly, 515 F.3d 149, 153 (2nd Cir. 2008); Peña v. State, 2004 MT 293, ¶ 41, 323 Mont. 

347, ¶ 41, 100 P.3d 154, ¶ 41 (Leaphart, J., concurring and dissenting). As the Supreme 

Court explained in Kontrick, “[c]haracteristically, a court’s subject-matter jurisdiction 

cannot be expanded to account for the parties’ litigation conduct.” Kontrick, 540 U.S. at 

456, 124 S. Ct. at 916; see also Miller, ¶ 44 (observing that subject-matter jurisdiction

cannot be forfeited, waived, or conferred by the consent of the parties). The Court noted 

that this is a “critical difference” between a rule governing subject-matter jurisdiction and 

an inflexible claim-processing rule. See Kontrick, 540 U.S. at 456, 124 S. Ct. at 916.4

¶26 Here, § 46-17-311(2), MCA, does not proscribe a class of cases that the district 

courts are incompetent to adjudicate. Indeed, it “ ‘does not speak in jurisdictional terms 

or refer in any way to the jurisdiction of the district courts.’ ” Arbaugh, 546 U.S. at 515, 

 

4

 In this regard, our statement in State v. Tweed, 2002 MT 286, ¶ 14, 312 Mont. 

482, ¶ 14, 59 P.3d 1105, ¶ 14, that “[a]n out-of-time appeal is a remedy that may be 

available to a criminal defendant who, through no fault of his own, misses a deadline for 

filing an appeal,” directly contradicts the notion that the filing deadlines for notices of 

appeal are “mandatory and jurisdictional.” Likewise, we could not have reset the time 

period for filing a notice of appeal in Adair v. Justice Court, 213 Mont. 466, 692 P.2d 13 

(1984), and State v. Tecca, 220 Mont. 68, 713 P.2d 541 (1986), if the time prescription 

were truly “jurisdictional.”
16

126 S. Ct. at 1245 (quoting Zipes, 455 U.S. at 394, 102 S. Ct. at 1133); cf. State v. 

Osborne, 2005 MT 264, 329 Mont. 95, 102B, 124 P.3d 1085, 1091 (Leaphart, Nelson & 

Cotter, JJ., dissenting from denial of rehearing) (observing that the statutory provision at 

issue did not proscribe a class of cases “in a substantive jurisdictional sense” but, rather, 

barred claims based on their timing). Moreover, the time prescription contained in § 46-

17-311(2), MCA, is subject to a good-cause exception. See § 46-17-311(3), MCA (“The 

defendant may petition the district court to order the record transmitted upon a showing 

of good cause for failure to timely file the notice of appeal.”). Thus, § 46-17-311(2), 

MCA, appears to be a claim-processing rule, not a jurisdictional provision.

¶27 But even if § 46-17-311(2), MCA, could be read as setting forth a limitation on the 

appellate jurisdiction of the district courts, the Legislature lacks the power and authority 

to impose such a limitation. Article VII, Section 4(2) of the Montana Constitution 

specifically recognizes the appellate jurisdiction of the district courts. It states, in 

pertinent part: “The district court shall hear appeals from inferior courts as trials anew

unless otherwise provided by law.” When Delegate John M. Schiltz presented the 

proposed language of this section, it read simply: “The District Court shall hear appeals 

from inferior courts as trials anew.” See Montana Constitutional Convention, Verbatim 

Transcript, February 29, 1972, p. 1074. Speaking on behalf of the ad hoc committee, 

which had worked out a compromise with respect to the language of Article VII, Section 

4, he explained: “We provided that the District Court should have the absolute duty to 

hear appeals from inferior courts and that those would be tried anew.” Montana 

Constitutional Convention, Verbatim Transcript, February 29, 1972, p. 1074. The clause 
17

“unless otherwise provided by law” was added later, by amendment, to provide the 

Legislature with the authority to eliminate the “anew” aspect of appeals from inferior 

courts; in other words, the delegates contemplated that the Legislature might limit such 

appeals to the record. See Montana Constitutional Convention, Verbatim Transcript, 

February 29, 1972, pp. 1075-78. But there is no indication in the debate or in the 

language ultimately adopted that the delegates sought to limit the appellate jurisdiction of 

the district courts in any other way or to authorize the Legislature to do so by statute.5

 

5

This history behind the adoption of Article VII, Section 4(2), calls into question 

this Court’s past assumption that the right to appeal from a court of limited jurisdiction to 

a district court is “purely statutory.” In State v. Province, 226 Mont. 425, 735 P.2d 1128 

(1987), in the context of addressing an appeal by the State from justice court to district 

court and then to this Court, we observed—without citation to any authority—that 

“[r]egardless of which party is appealing, this Court has consistently held that compliance 

with the statute is required to perfect an appeal because it is exclusively a statutory right.” 

Province, 226 Mont. at 426, 735 P.2d at 1129 (emphasis added). This notion that the 

right to appeal to a district court exists only as provided by statute was carried forward 

into numerous cases. See e.g. State v. Hartford, 228 Mont. 254, 256, 741 P.2d 1337, 

1338 (1987); State v. Arthur, 234 Mont. 75, 76-77, 761 P.2d 806, 807-08 (1988); State v. 

Speith, 244 Mont. 392, 394, 797 P.2d 221, 222 (1990); State v. Barker, 260 Mont. 85, 91, 

858 P.2d 360, 363 (1993); State v. Todd, 262 Mont. 108, 113, 863 P.2d 423, 426 (1993); 

State v. Ward, 266 Mont. 424, 427, 880 P.2d 1343, 1345 (1994); State v. Price, 271 

Mont. 409, 410, 897 P.2d 1084, 1085 (1995); City of Three Forks v. Schillinger, 2007 

MT 331, ¶ 13, 340 Mont. 211, ¶ 13, 173 P.3d 681, ¶ 13. Indeed, the premise that “the 

right to appeal a criminal conviction from a [court of limited jurisdiction] is purely 

statutory” was the underpinning of our decisions in State v. Feight, 2001 MT 205, 306 

Mont. 312, 33 P.3d 623, and its progeny. See Feight, ¶¶ 11-12; State v. Fox, 2001 MT 

209, 306 Mont. 353, 34 P.3d 484; State v. Kempin, 2001 MT 313, 308 Mont. 17, 38 P.3d 

859; State v. Boucher, 2002 MT 114, 309 Mont. 514, 48 P.3d 21. Yet, in view of the 

language of Article VII, Section 4(2), and the history of its adoption, there is clearly a 

constitutional component to the right to appeal to a district court. And though this Court 

and the Legislature may enact claim-processing rules to implement this right and to 

control the manner of appeal, see e.g. State v. Schindler, 268 Mont. 489, 886 P.2d 978 

(1994), neither we nor the Legislature may by rule, caselaw, or statute expand or 

withdraw the district courts’ constitutionally-conferred jurisdiction over appeals from

inferior courts.
18

¶28 For these reasons, I conclude that the 10-day limit on filing a notice of appeal in 

municipal court is a categorical time prescription that “ ‘assure[s] relief’ ” when properly 

raised but does not compel the same result if the party “ ‘waits too long to raise the 

point.’ ” Miller v. District Court, 2007 MT 149, ¶ 46, 337 Mont. 488, ¶ 46, 162 P.3d 

121, ¶ 46 (alteration in original) (quoting Eberhart, 546 U.S. at 15, 19, 126 S. Ct. at 404, 

407). But that does not end the analysis. The State never raised this time prescription in 

the District Court. Rather, six days after receiving the file from the Municipal Court, the 

District Court raised the filing deadline on its own initiative and dismissed Clark’s 

appeal. On the ground provided by the District Court—namely, that it lacked 

“jurisdiction”—this action was not improper. See Stanley v. Lemire, 2006 MT 304, ¶ 32, 

334 Mont. 489, ¶ 32, 148 P.3d 643, ¶ 32 (noting that courts have an independent 

obligation to determine whether subject-matter jurisdiction exists, even in the absence of 

a challenge from any party). However, the notion of raising a claim-processing rule sua 

sponte and then summarily dismissing the case based on noncompliance with that rule is 

troubling.

¶29 In Day v. McDonough, 547 U.S. 198, 126 S. Ct. 1675 (2006), the Supreme Court 

held that federal district courts are permitted, but not obliged, to consider, sua sponte, the 

timeliness of a state prisoner’s habeas petition. See Day, 547 U.S. at 202, 209, 126 S. Ct. 

at 1679-80, 1684; accord Davis, ¶ 24. However, the Court emphasized that “before 

acting on its own initiative, a court must accord the parties fair notice and an opportunity 

to present their positions” and must “determine whether the interests of justice would be 

better served by addressing the merits or by dismissing the petition as time barred.” Day, 
19

547 U.S. at 210, 126 S. Ct. at 1684 (internal quotation marks omitted); accord Davis, 

¶ 24. The Court also noted that it would be an abuse of discretion to override a State’s 

deliberate waiver of a limitations defense. Day, 547 U.S. at 202, 126 S. Ct. at 1679.

¶30 Such considerations are equally applicable here. Indeed, as noted above, 

§ 46-17-311(3), MCA, contemplates that failure to timely file the notice of appeal may be 

excused upon a showing of good cause. Clark, however, was never afforded the 

opportunity to make such a showing. For that matter, there is nothing in the record to 

suggest that the District Court provided notice that it was raising the 10-day filing 

deadline on its own motion; nor is there anything to suggest that the court, having raised 

the issue sua sponte, considered whether the interests of justice would be better served by 

allowing Clark’s appeal to proceed.

¶31 Again, these omissions by the District Court are not surprising, given the court’s 

“jurisdiction” rationale for dismissing Clark’s appeal. Be that as it may, I find Justice 

Souter’s comments in Bowles v. Russell, 127 S. Ct. 2360 (2007), to be apt here:

The District Court told petitioner Keith Bowles that his notice of 

appeal was due on February 27, 2004. He filed a notice of appeal on 

February 26, only to be told that he was too late because his deadline had 

actually been February 24. It is intolerable for the judicial system to treat 

people this way, and there is not even a technical justification for 

condoning this bait and switch.

Bowles, 127 S. Ct. at 2367 (Souter, Stevens, Ginsburg, & Breyer, JJ., dissenting). 

Likewise, in the case at hand, the Municipal Court told Clark that his notice of appeal 

was due on July 28, 2006. He filed his notice of appeal on that date, only to be told by 

the District Court that he was too late. His appeal was then dismissed by the District 
20

Court—sua sponte and based on a claim-processing rule—without fair notice and without 

an opportunity to make a showing of good cause to excuse his belated filing. I find these 

circumstances to be of serious concern.

¶32 That said, Clark has not challenged the propriety of the District Court’s decision to 

dismiss his untimely appeal sua sponte. For this reason, I concur in our decision to affirm 

the District Court. However, I do not believe that our Opinion should be read as 

condoning sua sponte, without-notice dismissals of untimely appeals.

/S/ JAMES C. NELSON

Justice Brian Morris joins the Special Concurrence of Justice James C. Nelson.

/S/ BRIAN MORRIS