NO. 93-210

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

STATE OF MONTANA,

Plaintiff and Respondent,

v.

NEIL TODD.

Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Madison,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Bob Alsobrook, Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Paul D.

Johnson, Assistant, Helena, Montana: Loren Tucker,

Madison County Attorney, Robert R. Zenker, Deputy,

Virginia City, Montana

Filed:

Submitted onBriefs: September 30, 1993

Decided: November 18, 1993
Justice Karla M. Gray delivered the Opinion of the Court.

This case presents procedural and jurisdictional issues

relating to when appeals from justice court to district court are

timely filed, the effect of a premature notice of appeal on the

justice court's jurisdiction and which court has jurisdiction to

rule on the timeliness of such an appeal. In affirming the

District Court's dismissal of Neil Todd's appeal from the Justice

Court to District Court, we take this opportunity to clarify the

procedural and substantive standards that surround an appeal from

justice court to district court.

Todd was charged in Madison County Justice Court with

misdemeanor assault as a result of allegedly slapping a high school

basketball referee. A jury subsequently convicted him of the

offense, a sentencing hearing was scheduled and the State filed its

recommendations. On March 18, 1992, Todd filed his sentencing

recommendation. On the same date, he filed a "Notice of Intention

to Appeal" his conviction to the District Court.

The Justice Court proceeded with sentencing on March 23, 1992,

without objection from Todd. It ordered Todd to pay a $250 fine or

perform fifty-nine hours of community service, and to pay

restitution to Madison County for jury costs totalling $603.55. It

also deferred imposition of a six-month sentence. Three months

later, Todd notified the Justice Court that he had fulfilled the

community service requirement. After three more months, the Clerk

of the Justice Court advised Todd that he had not yet reimbursed

the county for the jury costs, a condition of his deferred

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sentence. On the basis of Todd's failure to pay the ordered

reimbursement, the State moved the Justice Court for imposition of

sentence. It also moved that court to dismiss Todd's March 18,

1992, notice of intention to appeal.

Todd responded by requesting the Justice Court to transfer the

record of his case to District Court and to deny the State's motion

to dismiss the appeal. Following a hearing, the Justice Court

granted the State's motion to dismiss Todd's notice of intention to

appeal. Todd subsequently filed a notice of appeal from the

Justice Court's order dismissing his first appeal. After briefing

and oral argument, the District Court concluded that it had no

jurisdiction to review the Justice Court's order and dismissed his

appeal. Todd now appeals to this Court.

Did the District Court err in dismissing Todd's appeal?

We begin our analysis with the filing of Todd's initial notice

of intention to appeal and review the proceedings from that point

forward. As detailed above, Todd filed his first notice of

intention to appeal prior to sentencing by the Justice Court on his

assault conviction. The Justice Court disregarded the notice of

appeal and proceeded to sentence Todd.

The time requirements for filing an appeal to district court

are found in 5 46-17-311(2), MCA, which provides that a defendant

may appeal to the district court by filing written notice of

intention to appeal within ten days after a judgment is rendered

following trial. The statutory definition of l'judgmentl* states

that if a defendant is adjudicated guilty, judgment includes the

3
sentence pronounced by the court. Section 46-l-202(10), MCA.

Thus, a prerequisite for an appeal from justice court to district

court is the imposition of sentence and final judgment. State v.

Wilson (1992), 252 Mont. 264, 266, 827 P.2d 1286, 1287; State v.

Hegeman (1991), 248 Mont. 49, 52, 808 P.2d 509, 511. We note that,

although 5 46-17-311, MCA, was amended in 1993, the amendment does

not relate to or change the validity of Wilson's application of the

time requirements for filing a notice of appeal from justice court.

Under Wilson and the statutes discussed above, it is clear

that Todd's first notice of intention to appeal was filed

prematurely. As we explained in Heqeman, a district court does not

obtain jurisdiction until sentencing and final judgment have been

imposed; similarly, the justice court does not lose jurisdiction

until a timely notice of appeal has been filed pursuant to the

requisites of § 46-17-311, MCA. See Hecieman, 808 P.2d at 511. As

a result, we hold that Todd's notice of appeal from this criminal

action in Justice Court, filed prior to sentencing and final

judgment, was premature as a matter of law and had no effect on the

Justice Court's jurisdiction. Therefore, in this case, the Justice

Court retained jurisdiction over Todd's case and properly proceeded

to Todd's sentencing and final judgment.

However, procedural and jurisdictional errors in this case

were committed thereafter. Nearly seven months after sentencing

and final judgment, the State moved the Justice Court to dismiss

Todd's March 18, 1992, notice of intention to appeal on the basis

that the appeal was premature. In response, Todd asserted that his

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prior appeal was perfected and that a dismissal of his appeal would

be a denial of due process: he requested that the record be

transferred to District Court. The Justice Court held a hearing

and subsequently dismissed Todd's notice of intention to appeal.

Before we address Todd's specific arguments, we clarify a

procedural point relevant to this case to provide future guidance

to the justice courts. The district court, not the justice court,

must address the merits of a motion to dismiss an appeal from

justice court: therefore, it is in the district court that such a

motion must be filed. See, for example, State v. Speith (1990),

244 Mont. 392, 395, 797 P.2d 221, 222; City of Billings v. Seiffert

(1984) r 215 Mont. 381, 383, 697 P.2d 1342, 1343; and State v. Main

(1980), 191 Mont. 304, 307, 623 P.2d 1382, 1384. As is clear from

our discussion above, a motion to dismiss is not necessary if the

notice of appeal is premature as a matter of law: however, if a

motion to dismiss an appeal is otherwise appropriate, the motion

should be filed in the district court.

In Hadford v. Hadford (1980), 189 Mont. 329, 332, 615 P.2d

920, 921, after the appellant filed notice of appeal from a

district court order to the Supreme Court, the respondent moved the

district court to dismiss the appeal because a bond had not been

posted. We held that a district court had no authority to order

the dismissal of an appeal once a notice of appeal has been filed:

such authority is the exclusive province of this Court. Hadford,

615 P.2d at 921. The same principles apply here. The Justice

Court had no authority to rule on a motion to dismiss an appeal to

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the District Court.

Aside from the procedural irregularities, the District Court

ultimately concluded that dismissal of Todd's appeal was

appropriate. Our review of such legal conclusions is plenary. See

Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 475, 803

P.2d 601, 603. Because we have determined that Todd's first notice

of appeal was filed prematurely and had no legal effect, we turn

our focus to Todd's second notice of appeal.

The District Court concluded that it lacked jurisdiction to

review the Justice Court's order dismissing Todd's appeal because

9 46-17-311, MCA, limited its jurisdiction to a trial de novo.

Because Todd had failed to file his notice of appeal within ten

days of his sentence and final judgment, the court concluded that

its "de nova jurisdiction" was moot.

We conclude that the District Court did not err in dismissing

Todd's second notice of appeal. Section 46-17-311(l), MCA,

provides:

[elxcept for cases in which legal issues are preserved

for appeal pursuant to 46-12-204, all cases on appeal

from a justice's or city court must be tried anew in the

district court . . . .

As the statute makes clear, an appeal to the district court for a

trial de novo is a party's exclusive remedy for review of justice

court proceedings. Adair v. Lake County (1984), 213 Mont. 466,

468, 692 P.2d 13, 14. A district court does not have appellate

jurisdiction to review the correctness of legal conclusions made by

a justice court. State v. Kesler (1987), 228 Mont. 242, 246, 741

P.2d 791, 793. The District Court correctly determined, therefore,

6
that it could not review the Justice Court's order dismissing

Todd's appeal.

Todd concedes that a new trial is the exclusive remedy

provided by !j 46-17-311, MCA. He nonetheless asserts that the

Justice Court's hearing on the State's motion to dismiss his appeal

and his asserted "due process violations" constituted a trial

entitling him to an appeal under § 46-17-311, MCA. Todd's argument

is without merit. He cites no applicable authority to support his

assertion that this hearing, and not the trial held March 9, 1992,

to determine his guilt or innocence, was the "trial" from which he

could appeal to District Court. Under the plain wording of 5 46-

17-311, MCA, Todd's "triallV was held on March 9, 1992, and that

trial, not the hearing erroneously held by the Justice Court on the

State's motion to dismiss his initial notice of intention to

appeal, gave rise to his right to appeal to the District Court for

a trial de novo.

Todd also argues that rigid adherence to the time limits set

by 5 46-17-311, MCA, violates his constitutional guarantee of due

process. This argument is equally meritless. We have stated on

many occasions that the right to appeal a criminal conviction from

justice court is purely statutory and that strict compliance with

5 46-17-311, MCA, is necessary to perfect an appeal. Sueith, 797

P.2d at 222; State v. Arthur (1988), 234 Mont. 75,~ 76-77, 761 P.2d

806, 807. Todd simply failed to follow the requirements of § 46-

17-311, MCA, and, therefore, he is not entitled to a new trial in

District Court. No due process violation occurred here.

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In summary, we hold that Todd's first notice of appeal was

premature as a matter of law and that the District Court did not

err in dismissing Todd's second notice of appeal.

Affirmed.

We Concur:
November 18, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the

following named:

Bob Alsobrook

Attorney at Law

221 E. Mendenhall

Bozeman, MT 59715

Hon. Joseph P. Mazurek, Attorney General

Paul D. Johnson, Assistant

215 N. Sanders, Justice Bldg.

Helena, MT 59620

Loren Tucker, County Attorney

Robert R. Zenker, Deputy

P.O. Box 36

Virginia City, MT 59755

ED SMITH

CLERK OF THE SUPREME COURT

STATE G?F MONTANA