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, Attorney General; Jennifer Anders, 

 Assistant Attorney General, Helena, Montana 

 Marty Lambert, County Attorney; Matthew B. Lowy, 

 Deputy County Attorney, Helena, Montana 

 

 

 Submitted on Briefs: November 14, 2006 

 Decided: December 5, 2006 

Filed: 

__________________________________________ 

Clerk 
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Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Defendant Ronald Clark appeals the District Court’s dismissal of his appeal from 

justice court for failure to personally appear. 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 trial was held in the Justice Court of Gallatin 

County on August 25, 2005. Clark was found guilty. Clark then filed a timely notice of 

appeal to the Eighteenth Judicial District 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 authority to dismiss the appeal under § 46-17-

311(5), MCA, because Clark had failed to personally 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 given his right to a trial in Justice Court,” along 
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with the fact that Clark’s counsel failed, in the court’s view, 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 application 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 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? 

¶9 Section 46-17-311(5), MCA, simply says that if the defendant 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 court deadline, the court may, except for 

good cause shown, dismiss the appeal on the court’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 appealed judgment is reinstated and 

becomes the operative judgment. 

The section does not specifically define “appear,” nor is “appear” defined elsewhere in 

Chapter 17. However, “appear” is defined, in the context of a misdemeanor 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 trial in absentia if the defendant fails to appear personally 
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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 proceed with the trial “unless good cause for 

continuance exists.” 

¶10 Section 46-16-120, MCA, necessarily applies to § 46-17-311(5), MCA, in the 

context of a misdemeanor charge, because § 46-16-120, MCA, applies to “all 

[misdemeanor] cases.” A defendant, therefore, only “fails to appear” under § 46-17-

311(5), MCA, if both the defendant and defendant’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 above 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 from justice court, and, as the more specific 

statute, it should control. However, the State fails to provide authority for its underlying 

proposition that “fails to appear,” as used in § 46-17-311(5), MCA, refers to the 

defendant’s personal appearance. The District Court, nonetheless, agreed with the State, 

and concluded that because the specific language found in § 46-16-122, MCA, providing 

for trial in absentia at the justice court level, 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 Chapter 17 of Title 46 governs criminal procedure in justice 

and city courts, including appeals from justice court (see State v. Tweedy, 277 Mont. 313, 
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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 personal appearance. As explained above, § 46-

16-120, MCA, applies to all misdemeanor cases without qualification. Its definition of 

“appear,” which includes appearance by counsel, thus applies 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, specific definition of appear is provided in § 46-

17-311(5), MCA, or anywhere else in Chapter 17, the definition provided in § 46-16-120, 

MCA, controls. Thus, since Clark’s counsel was present and ready to proceed and the 

court had not previously required Clark’s personal attendance, the court did not have the 

authority, under § 46-17-311(5), MCA, to dismiss 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