No. DA 06-0078 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 313

STATE OF MONTANA, Plaintiff and Respondent,

v. RONALD ALLEN CLARK, Defendant and Appellant.

APPEAL FROM: The District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC-05-229, Honorable Holly Brown, Presiding Judge

COUNSEL OF RECORD: For Appellant: Andrew J. Breuner, Attorney at Law, Gallatin Gateway, Montana For Respondent: Honorable Mike McGrath, Atto rney General; Jennifer Anders, Assistant Attorney Ge neral, Helena, Montana Marty Lambert, County A ttorney; Matthew B. Lowy, Deputy County Attorney, Helena, Montana

Submitted on Briefs: November 14, 2006 Decided: December 5, 2006 Filed:

__________________________________________ Clerk2 Justice W. William Leaphart delive red the Opinion of the Court. ¶1 Defendant Ronald Clark appeals the Distri ct Court’s dismissal of his appeal from justice court for failure to personally a ppear. We reverse and remand for a trial de novo

on the merits. ¶2 We restate the issue as follows: ¶3 Does § 46-17-311(5), MCA, permit a district court to dismiss an appeal for failure to appear if the defendant’s counsel is present and ready to proceed on a misdemeanor charge?

BACKGROUND ¶4 On January 27, 2004, Clark was charged with the offense of issuing a bad check in violation of § 45-6-316(1), MCA. A jury tria l was held in the Justice Court of Gallatin County on August 25, 2005. Clark was found guilty. Clark then f iled a timely notice of appeal to the Eighteenth Judicial Dist rict Court of Gallatin County. ¶5 A jury trial de novo was set by the District Court for December 20, 2005. Clark failed to personally appear, but his counsel was present and expressed his readiness to proceed. The District Court dismissed Clark’ s appeal and reinstated the Justice Court’s judgment. ¶6 The District Court concluded it had author ity to dismiss the appeal under § 46-17- 311(5), MCA, because Clark had failed to pe rsonally appear. The court also reasoned that the circumstances, such as the nature of the appeal , the impending Christmas holiday, and the fact that Clark had “already been give n his right to a trial in Justice Court,” along3 with the fact that Clark’s co unsel failed, in the court’s vi ew, to present sufficient good cause for Clark’s absence, warranted dismissal of Clark’s appeal.

STANDARD OF REVIEW ¶7 A district court’s interpretation and ap plication of statute is reviewed for

correctness. In re T.H. , 2005 MT 237, ¶ 35, 328 Mont. 428, ¶ 35, 121 P.3d 541, ¶ 35 (citations omitted).

DISCUSSION ¶8 Does § 46-17-311(5), MCA, permit a dist rict court to dismiss an appeal for failure to appear if the defe ndant’s counsel is present and ready to proceed on a misdemeanor charge? ¶9 Section 46-17-311(5), MCA, simply says that if the defend ant does not appear, then the judge may dismiss the appeal: If, on appeal to the district court, the defendant fails to appear for a scheduled court date or meet a cour t deadline, the cour t may, except for good cause shown, dismis s the appeal on the c ourt’s own initiative or on motion by the prosecution and the right to a jury trial is considered waived by the defendant. Upon dismissal, the a ppealed judgment is reinstated and becomes the operative judgment. The section does not specifically define “app ear,” nor is “appear” defined elsewhere in Chapter 17. However, “appear” is defined, in the context of a mi sdemeanor charge, at § 46-16-120, MCA: “In all cases in which the defendant is charged with a misdemeanor offense, the defendant may appear by counsel only , although the court may require the personal attendance of the defendant at any time” (emphasis added). Also, § 46-16-122, MCA, expressly provides for a tr ial in absentia if the defenda nt fails to appear personally4 in a misdemeanor case and counsel is authorized to act on the defendant’s behalf. In fact, § 46-16-122, MCA, requires the court to pr oceed with the trial “unless good cause for

continuance exists.” ¶10 Section 46-16-120, MCA, necessarily ap plies to § 46-17-311(5), MCA, in the context of a misdemeanor charge, beca use § 46-16-120, MCA, applies to “all [misdemeanor] cases.” A defendant, theref ore, only “fails to appear” under § 46-17- 311(5), MCA, if both the defendant and de fendant’s counsel fail to appear, unless the court had previously informed the defendant that his personal attendance was required. We see no reason why the statute that allows a defendant to appear through counsel only at the justice court trial should not also apply in the district court trial de novo

. ¶11 The State, however, disagrees with the a bove statutory layout, and claims that “fails to appear” under § 46-17-311(5), MCA, translates to fails to appear personally

. The State claims that § 46-17-311(5), MCA, is a more specific statute than § 46-16-122, MCA, because it expressly applies to appeals fro m justice court, and, as the more specific statute, it should control. However, the State fails to provi de authority for its underlying proposition that “fails to appear,” as us ed in § 46-17-311(5), MCA, refers to the defendant’s personal appearance. The District Court, nonethel ess, agreed with the State, and concluded that because the specific la nguage found in § 46-16-122, MCA, providing for trial in absentia at the justice court leve l, is missing from § 46- 17-311(5), MCA, “fails to appear,” must be read to mean “fails to personally appear.” ¶12 While we agree that Chapte r 17 of Title 46 governs crim inal procedure in justice and city courts, including appeals from justice court ( see State v. Tweedy , 277 Mont. 313,5 317, 922 P.2d 1134, 1136 (1996) ), we disagree that “fails to appear,” as used in § 46-17- 311(5), MCA, refers to the defendant’s pers onal appearance. As e xplained above, § 46- 16-120, MCA, applies to all misdemeanor case s without qualification. Its definition of “appear,” which includes appear ance by counsel, thus app lies to § 46-17-311(5), MCA, unless a “provision for a different procedure is specifically provided by law.” Section 46-1-103(1), MCA. As no different, specifi c definition of appear is provided in § 46- 17-311(5), MCA, or anywhere else in Chapte r 17, the definition provided in § 46-16-120, MCA, controls. Thus, since Clark’s counse l was present and read y to proceed and the court had not previously required Clark’s pe rsonal attendance, the court did not have the authority, under § 46-17-311(5), MCA, to di smiss Clark’s appeal and reinstate the judgment of the Justice Court. ¶13 Consequently, we reverse and remand for a trial de novo in District Court.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ JAMES C. NELSON /S/ JOHN WARNER /S/ PATRICIA COTTER /S/ BRIAN MORRIS