No. 86-494
IN THE SUPREMECOURT OF THE STATE OF MONTANA 1987

THE STATEOF MONTANA, Plaintiff and Appellant,-vsRICHARD LYLE PROVINCE, Defendant and Respondent.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, In and for the County 

### of Gallatin, The Honorable Thomas Olson,Judgepresiding. COUNSEL OF RECORD: ForAppellant: Hon. Mike Greely,Attorney General, Helena,Montana Robert F.W. Smith,Asst. Atty. General,Helena A. Michael Salvagini,County Attorney, Bozeman, Montana; Duke R. Wolf, Deputy CountyAttorney For Respondent: LeanneM. Schraudner,Rozeman,Montana

Submitted on Briefs: Jan. 29, 1987 Decided: 

### April 17, 1987 Filed:

### AT-R

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ClerkMr. Justice William E. Hunt, Sr., delivered the Opinion of the Court.

The State appeals from an order from the Eighteenth JudicialDistrict, Gallatin County, Montana, dismissinga DUI charge for failureof the Statetogive noticeof appeal from justice court tothedefendant. Weaffirm. The issue raised on appeal is whether the State is required toservenotice of itsappeal from the justice court on defendant. The defendant, Richard Lyle Province, was arrested for drivingunder the influence of alcohol on March 7, 1986. The defendant plead not guilty and trial was set for July 15, 1986.Defendant made several requests tothe State toprovide the written report from the arresting officer. The report was never provided to him. On July 9, 1986, the defendant moved to dismiss the case for failure of the prosecution to comply with the court's discovery rule. The justice court granted the motion. Neither side raised the issue of the justice court's jurisdiction and dismissal of the charge under these circumstances and we do not rule on that question. The Statepromptly filed a notice of appeal inthe justice court, but neglected to serve notice of this appeal
on the defendant or his counsel. On July 23, 1986, the defendant received a District Court minute entry requesting the defendant to make an initial appearance before the District Court. The minute entry provided no information with respect to the charges against the defendant, nor was there any indication thattheminute entrywas a reference to
an appeal from justice court.Defendant made a motion to dismiss for failure of the State to perfect its appeal. The DistrictCourt granted the motion. The State appeals. In their arguments,both parties dissect and attempt to interpret § 46-17-311,MCA,which provides for an appeal from justice court. The parties discuss what "giving written notice of his intention to appeal 

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# ."means, citing case law and commission comments to the Code, none of which is compelling. Until recently the State was not allowed to appeal a ruling in favor of the defendant. Consequently, much of the history and case law is in reference to the defendant appealing from an unsatisfactory judgment in favor of the State. Now, under § 46-17-311,MCA, amended in 1985,either party can appeal certain actions. Regardless of which party is appealing, this Court has consistently held that compliance with the statute is required to perfect an appeal because it is exclusivelya statutory right. The State cites cases supporting its contention that strict compliance with the statutory requirement of "giving written notice ofhis intention to appeal" means no more than giving the justice court written notice. State ex rel. Ross v. Mallory (1979), 184 Mont. 29, 601 P.2d 385; State v. Mortenson (1978)

## , 175 Mont 403, 574 P.2d 581. These decisions are distinguishable. In Mallory the defendant failed to file his notice of appeal with justice court. In Mortenson the defendant did not file his appeal within the time allowed by statute. We hold that "giving written notice of an intention to appeal" under 46-17-311, MCA, requires that defendant receive notice. In the case at hand the State failed to perform thatwhichwas required. Namely, the State failed to serve notice of appeal upon defendant. The rationale forrequiring that the defendant be served with notice of an appealby the Statewas best summarizedby the District Court judge in this case. It ispatently unfair topermit the state to appeal against a defendant who has no idea that the case is still alive and that he still faces criminal sanctions; Notice was not, nor has it ever been served upon the defendant, Richard Province, or counsel for the defendant. The State cannot be allowed to circumvent procedural due process by relying on a clerk's minute entry as adequate notice of appeal to the defendant. The record shows that an unsigned certificate of service upon the defendant at the bottom of the notice of appeal indicating that the State failed to comply with that which it knew to be a mandatory requirement. The failure to serve notice of appeal on the defendant lies solelywith the appellant. The decision of the District Court dismissing the appeal is affirmed. /

We Concur: /

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# B/~*T-PIR / Chief Justice