No. 86-494 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsRICHARD LYLE PROVINCE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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 County Attorney 

For Respondent : 

Leanne M. Schraudner, Rozeman, Montana 

Submitted on Briefs: Jan. 29, 1987 

Decided: April 17, 1987 

Filed: AT-R 1 ;' 1387 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The State appeals from an order from the Eighteenth 

Judicial District, Gallatin County, Montana, dismissing a DUI 

charge for failure of the State to give notice of appeal from 

justice court to the defendant. We affirm. 

The issue raised on appeal is whether the State is 

required to serve notice of its appeal from the justice court 

on defendant. 

The defendant, Richard Lyle Province, was arrested for 

driving under 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 to the State to provide 

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 State promptly filed a notice of appeal in the 

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 that the minute entry was a reference to 

an appeal from justice court. 
Defendant made a motion to dismiss for failure of the 

State to perfect its appeal. The District Court 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 . . ." 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 exclusively a statutory right. 

The State cites cases supporting its contention that 

strict compliance with the statutory requirement of "giving 

written notice of his 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 that which was required. Namely, the State failed to 

serve notice of appeal upon defendant. The rationale for 
requiring that the defendant be served with notice of an 

appeal by the State was best summarized by the District Court 

judge in this case. 

It is patently unfair to permit 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 solely with the appellant. 

The decision of the District Court dismissing the appeal 

is affirmed. / 

We Concur: 

/ B (. . /~*T-PIR / Chief Justice