No. 80-233 

IN THE 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, City Attorney, Harlem, Montana 

Submitted on Briefs: October 23, 1980 

Decided: February 11, 1981 

Filed: FEB 11 19@ 
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 defendantst appeals properly dismissed for 

failure to cause timely transmission of the city court 

record? 

2. Are defendants entitled to appointed counsel on 

appeal to the District Court? 

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 conduct which resulted in the charge before us. 

Defendants were 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 a minute 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 record were 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 filed motions 

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 District Court ordered dismissal of 

defendants' appeals, and ruled the question of appointed 

counsel moot. 

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 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 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." 

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 commence until such notice is received. In State v. 

Mortenson (1978), 175 Mont. 403, 574 P.2d 581, this Court 

held the time for filing a notice of appeal runs from the 

oral pronouncement 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 

not dependent upon written judgment where there has been an 

oral pronouncement of the same in open court. 

Defendants next maintain that the time limit should be 

tolled during any time spent briefing the preliminary matter 
of eligibility for appointed counsel. We find this argument 

without merit. Defendants have not noted any authority, nor 

have we 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. The preliminary 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 obligation was 

satisfied by an alleged but unsubstantiated telephone call 

on January 23, 1980, to the City Court magistrate requesting 

transmission of the records. Regardless of the date of 

the initial request, the records were 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), 164 Mont. 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 . - , 601 P.2d 385, 36 

St.Rep. 1717. Defendants' failure to perfect their appeals 

by seeing the records actually in transit within the time 

limit mandated 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), 139 Mont. 222, 362 P.2d 413, that they should be 

entitled to trial -- de novo at the District Court level because 
the appeals were not perfected solely due to ineffectiveness 

of counsel. Defendants' reliance on Frodsham is misplaced. 

In that case this Court first dismissed the appeal, then 

considered the substantive issues in dicta and ultimately 

found no reversible error in the lower court proceedings. 

The Frodsham court specifically stated it did not wish to 

establish precedent in reviewing the issues. In any event, 

it would 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 Court properly 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 is moot. 

Affirmed. 

We Concur: 

Chief Justice 

Justice 

This cause was submitted prior to January 5, 1981.