NO. 95-035 IN THE SUPREMECOURTOFTHE STATE OFMONTANA 1996
STATE OFMONTANA,

Plaintiff &Respondent,
v

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Deer Lodge, The Honorable Ted L. Mimer, Judge presiding.

COUNSELOFRECORD:

For Appellant: Jeffrey T. Rem, Montana Defender Project, Missoula, Montana For Respondent: Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana; Edward Beaudette, Anaconda-Deer Lodge County Attorney, Anaconda, Montana

Filed: Submitted on Briefs: November 16, 1995 Decided: January 30, 1996Justice William E. Hunt, Sr. delivered the Opinion of the Court.

TheThird Judicial District Court, Deer Lodge County, found Appellant ThomasG. Rice (Rice) guilty of burglary and domestic abuse and imposed a three-year sentence with all but 90 days deferred, subject to certain conditions. Rice failed to abide by those conditions, andthe court consequently revoked the deferred sentence andsentenced himto ten years in prison, with nine years suspended. Rice appeals the validity of his burglary conviction. Appeal dismissed. The dispositive issue on appeal is: Whendoes a criminal defendant's time of appeal begin to run if the defendant receives
adeferred sentence? OnAugust 1, 1993, Rice assaulted the womanwith whomhe lived; she then fled to her mother's house and reported the incident to the police. After being examined and treated at the hospital, the victim returned to her mother's house. Sometime later, Rice entered the mother's house and assaulted the victim again. Hewasarrested shortly thereafter. Following a December 1993 bench trial, the District Court found Rice guilty of burglary anddomestic abuse. OnJune 8, 1994, the District Court sentenced Rice to three years with all. but 90 days deferred, subject to certain conditions. OnOctober 12, 1994, the State movedto revoke Rice's deferred sentence for failure to abide by the conditions set out by the District Court. OnNovember 23, 1994, the District Court revokedthe deferred sentence andsentenced Rice to ten years in prison,

with nine years suspended. Rice appeals the validity of his burglary conviction, contending that the District Court abused its discretion byfinding him guilty of that charge. The State contends this Court lacks jurisdiction to hear the appeal because the time in which Rice may appeal hasexpired. It therefore contends that Rice nolonger has the right to appeal the underlying burglary conviction, and that his right to appeal is limited to the revocation of his deferred sentence. Rice contends that the time in which hemayfile anappeal did not begin to run until sentence was actually imposed, which he argues occurred after revocation. If Rice is correct, his appeal is timely. If the State is correct, Rice's appeal is not timely andthis Court does not have jurisdiction to consider it. Wehold that Rice's appeal is not timely, andtherefore this Court has no jurisdiction to hear his appeal. Rule 5(b), M.R.App.P., gives adefendant 60days in which to appeal acriminal judgment. This Court is without jurisdiction to hear anappeal filed more than 60days after judgment. State v. Haskins (1992), 255Mont. 202, 841P.2d 542. Further, "an appeal may be taken by the defendant only from a final judgment of conviction andorders after judgment which affect the substantial rights of the defendant." Section 46-20-104(l), MCA. Therefore, the 60 days in which adefendant mayappeal do not begin to run until such time asafinal judgment is entered in the case.
3Ajudgment is "an adjudication byacourt that the defendant

is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court." Section 46-l-202(10), MCA. Section 46-18-201, MCA,allows
acourt to "defer imposition of sentence

. . . Land1impose upon the defendant anyreasonable restrictions or conditions during the period of the deferred imposition." Section 46-18-201(l) (a), MCA.

In light of the above statutes anddefinitions, Rice asserts that the time in which he may properly appeal the burglary conviction has not expired. Henotes that he mayonly appeal a final conviction, andthat aconviction is not final until sentence is imposed. Hecontends that adeferred sentence is not "imposedV1 unless anduntil the deferral is revoked. Therefore, Rice argues, the 60days in which hemayappeal his conviction beganat the time the deferral was revoked andsentence actually imposed. Since he appealed within this time, he contends that this Court retains jurisdiction. Rice urges this Court to interpret "sentence" as synonymous with "punishment," andweacknowledge that such an interpretation formerly was correct. Before 1990, the Montana Code Annotated defined "sentence" as "the punishment imposed onthe defendant by the court." Section 46-l-201(9), MCA(1989). This is consistent with Montana case law before 1991, which accepted "sentence" as being the sameas "punishment." SeeNewmanv. Estelle (1971), 156Mont. 502, 484P.2d 276; andPetition of Williams (1965), 145Mont.

45, 399P.2d 732. However, 5 46-l-202(24), MCA, enacted in 1991, defines "sentence" as "the judicial disposition of acriminal proceeding upon a plea, verdict, or finding of guilty." Under this new definition, any judicial disposition of acriminal case resulting from a plea, verdict or finding of guilt is itself a sentence, regardless of whether actual punishment is deferred or immediately imposed. Thus, when the District Court entered its order deferring imposition of sentence under §46-18-201(l) (a), MCA,pursuant to Rice's guilty plea, it sentenced himbyjudicially disposing of the criminal proceeding at issue. While Rice would have us equate a criminal "sentence" with imprisonment or probation uponsuspension of sentence, the plain language of §46-l-202(24), MCA, neither mandates nor suggests suchanarrow interpretation. Sentencing can anddoes encompass imprisonment or asuspended sentence, but the term is no longer strictly premised on the element of actual punishment. This does not mean, however, that weoverrule Williams and Estelle. While "sentence" maybe interpreted broadly pursuant to 546-l-202(24), MCA,in deferment cases suchasthe oneat bar, it continues to retain anarrower meaning, premised onthe "punishment factor," in double jeopardy cases. Onthis basis, Williams and Estelle are distinguishable. Williams and Estelle both address the question of whether a deferred sentence is a "final sentence" for purposes of invoking the constitutional prohibition against double jeopardy. In both 5cases, this Court held that adeferred sentence is not final for

purposes of double jeopardy because no punishment was imposed unless anduntil the deferred sentence wasrevoked. Williams, 399 P.2d at 737; Estelle, 484P.2d at 278. Accordingly, these two cases stand for the principle that a deferred imposition of sentence is not imprisonment or punishment in the constitutional sense of jeopardy, even if the deferred sentence includes probation conditions which require the service of
somejail time. This is an entirely different issue than the question of whether adeferred sentence is final for purposes of appeal. Therefore, our narrow holding in this case should not be construed to overrule Williams, Estelle, or their progeny. A defendant has sixty days in which to appeal a final judgment. Rule 5(b), M.R.App.P. A final judgment includes a sentence. Statutorily, asentence is any judicial disposition of
a criminal proceeding by plea, verdict, or finding of guilt. Section 46-l-202(24), MCA. Therefore, ajudgment which includes a deferred sentence is final for purposes of appeal. Rice had sixty days from the date judgment was entered in which to appeal his burglary conviction. Because hefailed to file
anappeal within the time allotted, this Court hasnojurisdiction to hear his appeal. Theappeal is dismissed.

WeConcur:Justices