No. 80-233 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

JAMES JOSEPH MAIN, SR., and VERNIE MAIN, Defendants and Appellants.

Appeal from: District Court of the Twelfth Judicial District, In and for the County of Blaine, The Honorable B. W. Thomas, Judge presiding.
Counsel of Record:
For Appellant: Francis X. Lamebull, Harlem, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Frank Altman, CityAttorney, Harlem, Montana

Submitted on Briefs: October 23, 1980 Decided: February 11, 1981

Filed: 

## FEB

## 1119@Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Defendants James Joseph Main and Vernie Main were each convicted of one count of disorderly conduct in the City Court of Harlem,Montana. Their appeal to the Twelfth Judicial District Court, Blaine County,was dismissed for failure to cause timely transmission of the record. Mains appeal from the order of dismissal. Defendants raise the following issues: 1. Were defendantstappealsproperly dismissed for failure to cause timely transmission of the city court record? 2. Are defendants entitled to appointed counsel on appeal to the DistrictCourt? During the evening of August 25, 1979,while defendants
were patronizing Kennedy's Bar in Harlem, their son arrived and informed them he had been stabbed in the abdomen. Defendants thereupon set out in search of the suspected assailant,apparently intent on exacting revenge. Their quest took them to a Harlem trailer court where they engaged in the conductwhich resulted in the chargebefore us. Defendantswere convicted of disorderly conduct following a jury trial in Harlem City Court on December 14, 1979. On the same date, the court orally imposed judgment and sentence,and made aminute entry setting forth the judgment and sentence. On December 24, 1979, defendants filed notices of appeal from the City Court judgment. Defense counsel apparently requested the City Court to transfer the record to the District Court on January 25, 1980. Documents from the Police Court recordwere forwarded to the District Court on January 28, 1980,and were received
on January 29, 1980, 35 days after the notices of appeal
were filed.On February 11, 1980, the City of Harlem filedmotions to dismiss the appeals for failure to transmit the records within the time period allowed in section 46-17-311(3), MCA. On March 17, 1980, the DistrictCourt ordered dismissal of defendants' appeals, and ruled the question of appointed counselmoot. Section 46-17-311,MCA,provides: "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 samemanner as a trial jury in a civil action, except that the total number of jurorsdrawn shallbe at least six plus the total number of peremptory challenges. "(2) The defendantmay appeal to the district courtby giving written notice of his intention to appeal within 10days after judgment. 

### "(3) Within 30 days, the entire record of the justice's or city courtproceedings must be transferred to the district court or the appeal must be dismissed. It is the duty of the defendant to perfect the appeal." Defendants advance four separate arguments which they assert should relieve them from operation of the 30-day statutory time limit. Defendants first argue that they have yet to be served with written notice of the judgments,and the 30-day limit cannot commenceuntil suchnotice is received. In State

### v. Mortenson (1978),175Mont. 403, 574 P.2d 581, this Court held the time for filing a notice of appeal runs from the oralpronouncement of judgment in open court. Defendants met their 10-day limit in this regard. We similarly hold here the time allowable for transmission of the record is notdependent upon written judgmentwhere there has been an oral pronouncementof the same in open court. Defendants nextmaintain that the time limit should be tolled during any time spentbriefing the preliminarymatterof eligibility for appointed counsel. We find this argument without merit. Defendantshave not noted any authority, nor havewe discovered any, which would support their position. To the contrary, however, timely transmission of the record could not in any way have hampered defense counsel's efforts
on the preliminary matter; and parts of the record would clearly have been relevant to the District Court's inquiry into the issue. Thepreliminary inquiry into the defendants' indigence did not act to excuse them from their statutory duty to cause transmission of the record. Defendants also submit their statutory obligationwas satisfiedby an alleged but unsubstantiated telephone call
on January 23, 1980, to the City Courtmagistrate requesting transmission of the records. Regardless of the date of the initial request, the recordswere not forwarded until January 28, 1980. The criminal procedure code should be considered in its entirety to determine the effect of any one section. State v. Bush (1974),164Mont. 81, 518 P.2d 1406. In this instance, section 46-20-311(2), MCA, indicates transmission of records is effected only when the clerk forwards such records. The duty to perfect an appeal is expressly directed to be that of the defendant. State ex rel. Ross 

### v. Mallory (1979), 

### -Mont

# . - 

## , 601P.2d 385, 36 St.Rep. 1717. Defendants' failure to perfect their appeals by seeing the records actually in transitwithin the time limitmandated the dismissals pursuant to section 46-17- 311(3), MCA, notwithstanding their unsuccessful eleventh hour efforts to cause transmission of those records. Defendants finally assert, relying on State v. Frodsham (1961),139Mont. 222, 362 P.2d 413, that they should be entitled to trial 

### -- de novo at the District Court level becausethe appealswere not perfected solely due to ineffectiveness of counsel. Defendants' reliance on Frodsham ismisplaced. In that case this Court first dismissed the appeal, then considered the substantive issues in dicta and ultimately found no reversibleerror in the lower courtproceedings. The Frodsham court specifically stated it did notwish to establishprecedent in reviewing the issues. In any event, itwould have been for the District Court, had it so desired, to review the issues as in Frodsham. We will not,based
on tenuous rationale, excuse defendants' failure to meet explicit statutory requirements. The District Courtproperly dismissed defendants' appeals pursuant to section 46-17-311(3), MCA. The dismissals having been properly entered, the related question of defendants' rights to appointed counsel for purposes of trial -- de novo
on appeal ismoot. Affirmed.

We Concur:

Chief Justice Justice

This causewas submittedprior to January 5, 1981.