NO. 95-035 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

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. 

COUNSEL OF RECORD: 

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, 1996 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

The Third Judicial District Court, Deer Lodge County, found 

Appellant Thomas G. 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, and the court consequently revoked the deferred 

sentence and sentenced him to ten years in prison, with nine years 

suspended. Rice appeals the validity of his burglary conviction. 

Appeal dismissed. 

The dispositive issue on appeal is: When does a criminal 

defendant's time of appeal begin to run if the defendant receives 

a deferred sentence? 

On August 1, 1993, Rice assaulted the woman with whom he 

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. He was arrested shortly thereafter. 

Following a December 1993 bench trial, the District Court 

found Rice guilty of burglary and domestic abuse. On June 8, 1994, 

the District Court sentenced Rice to three years with all. but 90 

days deferred, subject to certain conditions. 

On October 12, 1994, the State moved to revoke Rice's deferred 

sentence for failure to abide by the conditions set out by the 

District Court. On November 23, 1994, the District Court revoked 
the deferred sentence and sentenced 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 by finding 

him guilty of that charge. The State contends this Court lacks 

jurisdiction to hear the appeal because the time in which Rice may 

appeal has expired. It therefore contends that Rice no longer 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 he may file an appeal 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 

and this Court does not have jurisdiction to consider it. We hold 

that Rice's appeal is not timely, and therefore this Court has no 

jurisdiction to hear his appeal. 

Rule 5(b), M.R.App.P., gives a defendant 60 days in which to 

appeal a criminal judgment. This Court is without jurisdiction to 

hear an appeal filed more than 60 days after judgment. State v. 

Haskins (1992), 255 Mont. 202, 841 P.2d 542. Further, "an appeal 

may be taken by the defendant only from a final judgment of 

conviction and orders after judgment which affect the substantial 

rights of the defendant." Section 46-20-104(l), MCA. Therefore, 

the 60 days in which a defendant may appeal do not begin to run 

until such time as a final judgment is entered in the case. 

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A judgment is "an adjudication by a court 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 

a court to "defer imposition of sentence . . . Land1 impose upon 

the defendant any reasonable restrictions or conditions during the 

period of the deferred imposition." Section 46-18-201(l) (a), MCA. 

In light of the above statutes and definitions, Rice asserts 

that the time in which he may properly appeal the burglary 

conviction has not expired. He notes that he may only appeal a 

final conviction, and that a conviction is not final until sentence 

is imposed. He contends that a deferred sentence is not "imposedV1 

unless and until the deferral is revoked. Therefore, Rice argues, 

the 60 days in which he may appeal his conviction began at the time 

the deferral was revoked and sentence 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," and we acknowledge that such an interpretation 

formerly was correct. Before 1990, the Montana Code Annotated 

defined "sentence" as "the punishment imposed on the 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 same as "punishment." See Newman v. Estelle (1971), 156 
Mont. 502, 484 P.2d 276; and Petition of Williams (1965), 145 Mont. 

45, 399 P.2d 732. 

However, 5 46-l-202(24), MCA, enacted in 1991, defines 

"sentence" as "the judicial disposition of a criminal proceeding 

upon a plea, verdict, or finding of guilty." Under this new 

definition, any judicial disposition of a criminal 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 him by judicially disposing of the 

criminal proceeding at issue. While Rice would have us equate a 

criminal "sentence" with imprisonment or probation upon suspension 

of sentence, the plain language of § 46-l-202(24), MCA, neither 

mandates nor suggests such a narrow interpretation. Sentencing can 

and does encompass imprisonment or a suspended sentence, but the 

term is no longer strictly premised on the element of actual 

punishment. 

This does not mean, however, that we overrule Williams and 

Estelle. While "sentence" may be interpreted broadly pursuant to 

5 46-l-202(24), MCA, in deferment cases such as the one at bar, it 

continues to retain a narrower meaning, premised on the "punishment 

factor," in double jeopardy cases. On this 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 

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cases, this Court held that a deferred sentence is not final for 

purposes of double jeopardy because no punishment was imposed 

unless and until the deferred sentence was revoked. Williams, 399 

P.2d at 737; Estelle, 484 P.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 

some jail time. This is an entirely different issue than the 

question of whether a deferred 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, a sentence is any judicial disposition of 

a criminal proceeding by plea, verdict, or finding of guilt. 

Section 46-l-202(24), MCA. Therefore, a judgment 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 he failed to file 

an appeal within the time allotted, this Court has no jurisdiction 

to hear his appeal. 

The appeal is dismissed. 

We Concur: 
Justices