No. 86-47

JMTHE SIJPREME COURT OF THE STATE OF MONTANA
1986

STATE OF MONTANA, ex rel

# .,GARY ARFITT,

JUSTICE COURT OF LAKE COUNTY, Polson, Montana, CHAF.I,ES C. MEYEF, Justice of the Peace,

ORIGINAJ PROCEEDING:

COPNSEL OF RECORD: For Petitioner: Thomas AlanKragh, Polson, Montana
Fnr Respondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana

Submitted: January 22, 1986 Decided: February 13, 1986 

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- ClerkOPINIONAND ORDER

Mr. Justice John C. Sheehy delivered the Opi-nionof the Court.The relator, Gary Abbitt, applies to this Court for writ of supervisory control in the following circumstances: In cause no. 40-338-5 in Lake County Justice of the Peace Court on December 19, 1985, Gary Abbitt, after having been advised of his rights and waiving his right to counsel, entered guilty pleas to the offenses of criminal possession of dangerous drugs, a misdemeanor,and criminalpossession 

### of drug paraphernalia, amisdemeanor. Justice of the Peace CharlesC. Meyer imposed 

### onAbbitt sentences of 6 months on each count to be served. consecutively in the Lake County jail and in addition imposed a $300 fine on each count. The defendant, who is indigent, requested counsel for appeal, and the justice of the peace appointed a Lake County public defender, Thomas A. Kragh to represent the defendant. Abbitt's attorney timely filed a written notice of appeal to the District Court, and the justice of the peace imposed an appeal bond in the sum of $1,500. 

### All parties agree that Abbitt is indigent. The justice of the peace denied the defendant

### 's request to transmit the Justice Court record for appeal to the District Court without Abbltt posting the appeal bond. Abbitt then initiated in the District Court,TwentiethDistrict.,Lake County, applications for mandamus and for habeas corpus. Both applications were denied by the District Court upon the authority of State 

### v. Rush (19741,164 Mont. 81, 518 P.2d 1406. Theholding ofRush must be overruled by us. The facts in Bush were that the defendant had been convicted 

### in theJustice Court of Ravalli County of assault in the third degree. Shewas fined $150,and sentenced to 60 days in the county jail which was suspended. She filed a written notice of appeal to the District Court of the Fourth Judicial District for Ravalli County. She did not post an appeal bond. The Ravalli county attorney moved to have the appeal dismissed on the grounds that the defendant's failure topost
a bond meant the appealhad not been perfected. The District Court granted the motion to dismiss the appeal. The dismissal of the appeal in the District Court was appealed to this Court, the sole issuepresented being whether an appeal bond is necessary in a criminal case to perfect an appeal from the Justice Court to the District Court, where the defendanthas been convicted. The court referred to then existing section 95-2009, R.C.M. (1947) which allowed a defendant in a criminal proceedings in justice court to appeal to the District Court by giving v~rittennotice of his intent to appeal within 10 days after judgment. Nothing, however, in section 95-2009 requires a posting of a bond to perfect such an appeal. This Court relied on the revised comment of the Advisory Commission to section 95-2009,R.C.M. (1947),which indicated that the burden is on a defendant in criminalproceedings to perfect an appeal from the Justice Court and stated: "This burden is sustained when the defendant has posted the requisite bond

# . . ." - Id. at 82, 518 P.2d at 1407. This Court therefore implied from the commission comment that the language of the comment indicated an intent to require bond
as a part ofperfected appeal. Under our presently existing rules and statutes, it is true that in 

### an appeal of a judgment in a civil case from ajustice court to a district court, the undertaking on appeal "may be in the form of an appeal bond or a deposit ofmoney in the sum equal to the amount of the judgment, including costs." Rule 20, Montann Justice Courts Rules of Civil Procedure. In appeals from criminal convi.ctions in justice courts however the statute is section 46-17-311, MCA, which is inwords and figuresas follows: Appeal. (1) All caseson 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 ofperemptory challenges.

(2) A party may appeal to the district court by giving written notice of his intention to appeal within 10 days after judgment, except that the state may only appeal in the cases provided for in 46-20-103. (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 appellant to perfect the appeal. There is no statutory provision in an appeal from a criminal conviction in the justice court for the filing of an appealbond. The holding in Bush, that in an appeal from a criminal conviction in a justice court to the DistrictCourt an appeal bond must be furnished is hereby expressly overruled. There is no such requirement in the law and Abbitt may not be required to fur~ishan appeal bond in order to perfect his appeal from the JusticeCourt to the DistrictCourt. Abbitt is presently incarcerated in the Lake County jail. Abbitt has a right to be admitted to bail either 

### in the Justice Court before the appeal is perfected, or in the Dj-strictCourt after the appeal is perfected. He must, ofcourse, qualify forbail inaccordancewith theprovisions of section 46-9-103, MCA, and t-he amount of his bail must be determined in accordance with section 46-9-301, MCA. A bail bond has statutory authority and is not tobe confused with
an appeal bond, for which there is no statutory provision. ACCORDINGLY, ITIS ORDERED: 1. The Court accepts jurisdiction inthiscase forthe purpose of the issuance of a writof supervisory control to the Justice Court of Lake County, Montana, Charles C. Meyer, Justiceof thePeace presiding. 2. Abbitt isentitledtoperfect hisappeal without the necessity of filingan appealbond asrequiredby thejustice court. 3. Within 30 days from the issuance of this order and opinion, theentirerecord of theJustice's Court proceedings relatingtoAbbittmust be transferredtothe DistrictCourt,
or his appeal must be dismissed. It shall be the duty of Abbitt toperfect theappeal. Section 46-17-311, MCA. 4. A copy of this order and opinion shall be and constitute and serve the office of a writ of supervisory control to effectuate the orders of this Court herein contained. 5. Copies of this opinion and order shallbe served by the Clerk of this Court by ordinary mail upon counsel of record, the District Court of the Twentieth Judicial District, County of Lake, and upon the JusticeCourt of Lake County, Polson, Montana, Charles C. Meyer, LTusticeof the Peace presiding. DATED this/,?*day of February, 1986.Justice

We Concur: /C