No. 86-47 

JM THE 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 Alan Kragh, Polson, Montana 

Fnr Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Submitted: January 22, 1986 

Decided: February 13, 1986 

FEB 1 3 1986 

~i led.: 

- Clerk 
OPINION AND ORDER 

Mr. Justice John C. Sheehy delivered the Opi-nion of 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 criminal possession of 

drug paraphernalia, a misdemeanor. 

Justice of the Peace Charles C. Meyer imposed on Abbitt 

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, Twentieth District., 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. 

The holding of Rush must be overruled by us. The facts 

in Bush were that the defendant had been convicted in the 
Justice Court of Ravalli County of assault in the third 

degree. She was 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 to post 

a bond meant the appeal had 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 issue presented 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 

defendant has 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~ritten notice 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 criminal proceedings 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 of perfected appeal. 

Under our presently existing rules and statutes, it is 

true that in an appeal of a judgment in a civil case from a 
justice court to a district court, the undertaking on appeal 

"may be in the form of an appeal bond or a deposit of money 

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 in words and figures as follows: 

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) 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 

appeal bond. 

The holding in Bush, that in an appeal from a criminal 

conviction in a justice court to the District Court 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~ish an appeal bond in order to perfect his 

appeal from the Justice Court to the District Court. 

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-strict Court after the appeal is perfected. He must, of 
course, qualify for bail in accordance with the provisions 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 to be confused with 

an appeal bond, for which there is no statutory provision. 

ACCORDINGLY, IT IS ORDERED: 

1. The Court accepts jurisdiction in this case for the 

purpose of the issuance of a writ of supervisory control to 

the Justice Court of Lake County, Montana, Charles C. Meyer, 

Justice of the Peace presiding. 

2. Abbitt is entitled to perfect his appeal without the 

necessity of filing an appeal bond as required by the justice 

court. 

3. Within 30 days from the issuance of this order and 

opinion, the entire record of the Justice's Court proceedings 

relating to Abbitt must be transferred to the District Court, 

or his appeal must be dismissed. It shall be the duty of 

Abbitt to perfect the appeal. 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 shall be 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 Justice Court of Lake 

County, Polson, Montana, Charles C. Meyer, LTustice of the 

Peace presiding. 

DATED this /,?*day of February, 1986. 
Justice 

We Concur: 

/C