No. 81-306 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Appellant, 

VS . 

ROBERT V. CRANE, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Charles A. Graveley, County Attorney, Helena, Montana 

For Respondent: 

William Dee Morris, Missoula, Montana 

.JAN 2 1 1982 Filed. 

Submitted on briefs: September 3, 1981 

Decided : JAW 2 1 1382 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

The State of Montana appeals a First Judicial District decision granting defendant Robert Crane habeas corpus 

and releasing him from jail after serving forty-four days of 

his 121-day sentence. 

On July 7, 1978, the Montana Department of Revenue 

filed a complaint against Robert Crane, d/b/a Crane's 

Fabrics, for violation of section 84-2401, R.C.M. 1947 (now 

section 15-57-102, PICA), operating a store without a valid 

retail license. Such violation is a misdemeanor under 

section 84-2411, R.C.M. 1947 (now section 15-57-110, MCA). 

Crane was tried and convicted by a six-person jury on 

December 13, 1978. On January 4, 1979, he was fined $1,200, 

of which $1,000 would be suspended if Crane purchased the 

$11.00 license within twelve days. 

On January 12, 1979, Crane filed a notice of appeal 

with the Justice of the Peace, but he failed to have the 

court records transferred to the District Court. The Department of Revenue moved to revoke the suspended sentence. The 

Justice of the Peace gave Crane until July 2, 1979, to pay 

the entire $1,200 fine or face a 121-day jail sentence ($10 

a day, plus one day for contempt). No fine was paid, and 

the Department of Revenue petitioned the Justice of the 

Peace to set a date for Crane to show cause why he should 

not be held in contempt. A show cause hearing was held on 

February 6, 1981, and on February 9, 1981, Crane was ordered 

to pay the fine by February 15, 1981, or go to jail. On 

February 16, 1981, Crane appeared at the Lewis and Clark 

County jail and began serving his 121-day sentence. 

Crane petitioned the First Judicial District Court 
for a writ of certiorari but was granted a writ of habeas 

corpus. The District Court found that $200, not $1,200, was 

the proper fine and released Crane from jail, as he had 

already served forty-four days, which at $10 a day far 

exceeded the $200 fine. The State of Montana appeals the 

District Court's decision. 

Throughout this case Crane has claimed that he transferred all his property to the Freedom Church, which he 

founded in 1976 and which met at the "Crane's Fabrics" store 

until it burned. He also claims he has taken vows of 

poverty and is thus indigent. Therefore, he claims he cannot afford to pay taxes, fines or attorney fees. He has 

proceeded pro se with the exception of some voluntary legal 

assistance on his brief for this appeal. Regardless of 

whether Crane has the money, it is the Freedom Church's 

position, and his position, that the retail license tax is 

unconstitutional, and Crane therefore refuses to pay it. 

Four issues are raised on appeal: (1) Did the 

defendant properly perfect his appeal to the District Court? 

(2) Did the District Court have jurisdiction to grant a writ 

of certiorari? (3) Did the District Court have jurisdiction 

to grant a writ of habeas corpus? (4) Did the District 

Court err in reducing the fine from $1,200 to $200? 

The first issue presented on appeal is whether the 

defendant properly perfected his appeal to the District 

Court. We find that he did not. 

The pertinent Montana statute, section 95-2009, 

K.C.M. 1947 (now section 46-17-311, MCA), provides in part: 

"(2) The defendant may appeal to the district 

court by giving written notice of his intention to appeal within 10 days after judgment. 
"(3) Within 30 days, the entire record of the 

justice or police court proceedings must be 

transferred to the district court or the 

appeal must be dismissed. It is the duty of 

the defendant to perfect the appeal." ( Emphasis added. ) 

Although the defendant filed the necessary written 

notice, he did not have the court records transferred to the 

District Court within thirty days or within a forty-five-day 

extension. As the above statute provides, and as this Court 

has strictly construed, it is the defendant's duty to perfect the appeal. State v. Main (1981), Mont . , 623 

P.2d 1382, 1383-1384, 38 St.Rep. 205 (appeal dismissed 

because court records were not properly transferred); State 

ex rel. Ross v. Mallory (1979), - Mont. - , 601 P.2d 385, 

385-386, 36 St.Rep. 1717 (written appeal given to wrong 

court); State v. Mortenson (1978), 175 Mont. 403, 574 P.2d 

581, 582 (no written appeal within ten days of oral judgment); State v. Bush (1974), 164 Mont. 81, 518 P.2d 1406, 

1407 (appeal bond was not posted). Thus, the defendant 

waived his appeal by failing to perfect it. 

The second issue presented on appeal is whether the 

District Court had jurisdiction to grant a writ of certiorari. We hold that it did not. 

Montana statute, section 93-9002, R.C.M. 1947 (now 

section 27-25-101 et seq., MCA), provides that certiorari 

may be granted "by the district court . . . [I] when an 

inferior tribunal . . . has exceeded the jurisdiction of 

such tribunal . . . and [2] there is no appeal, [3] nor, in 

the judgment of the court, any plain, speedy, and adequate 

remedy." See also, Matter of DeWar (1976), 169 Mont. 437, 

548 P.2d 149, 153. If any one of the three necessary 

elements is missing, certiorari cannot be granted. State v. 
District Court (1948), 122 Mont. 61, 198 P.2d 761, 765. 

There has been no evidence presented, or authority 

cited, indicating that the Justice of the Peace Court exceeded its jurisdiction. Appeal, which is a "plain, speedy, 

and adequate remedy," was available but was not perfected. 

Thus, all three elements necessary for the District Court to 

grant certiorari are missing, and the District Court had no 

jurisdiction to grant certiorari. See, e.g., McVay v. McVay 

(1954), 128 Mont. 31, 270 P.2d 393, 395 (no certiorari 

available when appeal waived); State v. District Court 

(1952), 125 Mont. 481, 240 P.2d 854, 861 (no certiorari 

granted if appeal available); White v. Corbett (1935), 101 

Mont. 1, 52 P.2d 156, 157 (no certiorari granted if appeal 

available). 

The third issue raised on appeal is whether the 

District Court had jurisdiction to grant a writ of habeas 

corpus. We hold that it did not. 

Montana statute clearly outlines the prerequisites 

for a writ of habeas corpus. Requirements which have not 

been met in the instant case include: (1) application for 

writ, section 46-22-201, MCA; (2) verification by oath or 

affirmation, section 46-22-201, MCA; (3) service to county 

attorney, section 46-22-205, MCA; (4) hearing, section 46- 

22-304, MCA; and (4) production of evidence, section 46-22- 

305, MCA. 

At the defendant's hearing on his application for 

writ of certiorari, the court decided to treat the application as one for habeas corpus. As previously noted, the 

defendant here failed to properly prepare a petition for 

habeas corpus, and the District Court did not have juris- 
diction to consider such a writ. See, Stubben v. Flathead 

Cty. Dept. of Public Welfare (1976), 171 Mont. 111, 556 P.2d 

904. However, this Court or the District Court will 

liberally construe a jailed pro se defendant's petition for 

relief. 

". . . we realize there will be many cases 

where prisoners may have good grounds for 

petitioning this Court for relief and are 

unable to secure the assistance of an attorney because of their financial condition, or 

otherwise. In those instances we give every 

reasonable inference that we can to such 

petitions to see whether the same are sufficient to justify a hearing upon the issues 

raised, if any." Brake v. State (Okl. 1963), 

380 P.2d 95, 96. 

The facts determined by the District Court suggest 

that there was a proper basis for a petition of habeas 

corpus if one had been properly prepared and served. 

The fourth issue raised on appeal is whether the 

District Court erred in reducing the fine from $1,200 to 

$200. Because of our holding in this case, we need not 

address this issue. 

We reverse and remand this matter to the District 

Court with directions that the matter be held in abeyance 

for a period of thirty days during which time the petitioner 

shall prepare, serve and submit a properly prepared petition 

in habeas corpus for the court's consideration.