No. 14973 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Appellant, 

vs . 

CHARLES SANCHEZ, 

Defendant and Respondent. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John S. Forsythe, Forsyth, Montana 

For Respondent : 

Clarence T. Belue, Hardin, Montana 

Submitted on briefs: February 27, 1980 

Filed: ,. 5, c'GQ -Y 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal from an order entered in Rosebud 

County District Court dismissing the State's appeal of 

this cause from justice court. The sole issue presented 

for review is whether the State may appeal a dismissal order 

of a justice court pursuant to section 46-20-103, MCA? 

Charles Sanchez was brought to trial in Rosebud County 

Justice Court on June 6, 1979 on misdemeanor charges of 

reckless driving and obstructing a peace officer. Sanchez 

entered a plea of guilty to the reckless driving charge but 

went to trial on the remaining charge. On the second day 

of trial the justice of the peace granted Sanchez's motion 

to dismiss, discharged the jury and released Sanchez. 

The State sought to appeal the justice court dismissal 

by a trial -- de novo in District Court. A show cause hearing 

was held on June 27, 1979. Subsequently on July 12, 1979, 

the District Court issued an order denying the State's 

right of appeal on the grounds that the State had no statutory 

authority to appeal a dismissal in a criminal case. 

On July 19, 1979, an attempt was made to refile the 

charge in justice court. The justice court dismissed the 

complaint on double jeopardy grounds. 

On August 8, 1979, the State filed a petition in this 

Court for a writ of supervisory control directing the filing 

of the requested information. The petition was denied on 

September 4. 1979 for the reason "the remedy by appeal is 

plain. speedy and adequate" thus precluding issuance of an 

extraordinary writ. 

The State now appeals from the July 12, 1979 dismissal 

order of the District Court. 
Solution of the issue presented for our review is found 

in the 1972 Mont. Const. Art. VII, 54, which delineates the 

jurisdiction of district courts. Subsection 2 states in 

part: "The district court shall hear appeals from inferior 

courts as trials anew unless otherwise provided by law.. . ." 

Turning to Title 46, the Criminal Procedure Title of 

the Montana Codes Annotated, and in particular, chapter 17 

concerning lower court proceedings, we find part 3 entitled 

"Procedure After Trial--Justices1 and City Courts." Section 

46-17-311, MCA, states: 

"Appeal. (1) All cases on appeal from justices' 

or city courts must be tried anew in the 

district court and may be tried before a jury of 

six selected in the same manner as a trial jury 

in a civil action, except that the total number 

of jurors drawn shall be at least six plus the 

total number of peremptory challenges. 

"(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's [sic] or city 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." 

However, as we shall see, this statute is applicable only to 

appealing defendants and does not grant the State an appeal. 

In the present case, it appears the cause was dismissed 

in justice court pursuant to defendant's motion which was 

premised on denial of defendant's constitutional right to 

compel witnesses to testify on his behalf in accordance with 

1972 Mont. Const. Art. 11, S24. A witness subpoenaed by 

both parties testified for the prosecution but failed to 

appear for the defense. As previously noted the District 

Court dismissed the State's appeal for lack of jurisdiction, 

and we agree. 

Appellant argues that this appeal is not brought pursuant 

to section 46-17-311, the trial -- de novo statute, but pursuant 
to section 46-20-103(2) (a) instead which provides: 

"Scope of appeal & state. (1) Except as 

otherwise specifically authorized, the state 

may not appeal in a criminal case. 

"(2) The state may appeal from any court order 

or judgment the substantive effect of which 

results in: 

" (a) dismissing a case;" 

Statutes granting the right of appeal to the state in 

criminal actions must be strictly construed and limited to 

the instances mentioned. State v. Hagerud (1977), 174 Mont. 

361, 366, 570 P.2d 1131, 1134; State v. Cool (1977), 174 Mont. 

99, 102, 568 P.2d 567, 568; State v. Peck (19281, 83 Mont. 

Although the statutes in question are not identical to 

those concerned within the immediate case, we find the 

reasoning in Forsythe v. Wenholz (1976), 170 Mont. 496, 554 

P.2d 1333 applicable to the instant case. In that case we 

stated: 

"Initially, we note this Court in State v. 

Bush, 164 Mont. 81, 518 P.2d 1406, stated: 

II I . . . since the code [of criminal procedure] 

was adopted as one comprehensive piece of 

legislation it should be considered in its 

entirety to determine the effect of any one 

section. ' 

"The district court was correct in excluding 

justices of the peace from the purview of 

section 95-2101 because the particular context 

of that section in Montana's Code of Criminal 

Procedure clearly requires a different meaning 

than that propounded by the appellant, Section 

95-201, R.C.M. 1947. Chapter 20, Title 95, 

R.C.M. 1947 'Justice and Police Court Proceedings', 

was accompanied by a Criminal Law Commission 

Comment which states in part: 

"'This Chapter includes only those sections which 

are peculiar or apply exclusively to justice and 

police courts.. . .' 

"In Chapter 20, the only post-trial relief afforded 

is an appeal to the district court for a trial 

de novo. Section 95-2009, R.C.M. 1947." [Now 

section 46-17-311, MCA]. Forsythe, 170 Mont. at 

498-99, 554 P.2d at 1334-35. 
Section 46-20-103, MCA, when taken in context with all 

of the sections and provisions of Title 46 and considered in 

light of how the original code of criminal procedure was 

arranged and adopted, leads us to conclude that the scope of 

the section applies only to Montana district courts and not 

to justice courts. As a result the State has no right to 

appeal the final decision of a justice court in a criminal 

case, whether it be pursuant to section 46-20-103, MCA, or 

section 46-17-311, the trial de -- novo statute. State v. Bush 

(1974), 164 Mont. 81, 518 P.2d 1406, applies only to interlocutory 

orders of the justice court. 

The decision of the District Court is affirmed. 

We Concur: 

Chief Justice 

j Justice 

J d