No. 94-241

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

-vsKATHLEEN FAY SCHINDLER,

Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Gregory W. Duncan; Harrison, Loendorf & Poston,

Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Patricia

J. Jordan, Ass't Attorney General, Helena, Montana

Submitted on Briefs: October 20, 1994

UK 20 1994 Decided: December 20, 1994

Filed:
Justice John Conway Harrison delivered the Opinion of the Court.

Kathleen Fay Schindler (Schindler) appeals the Fifth Judicial

District Court's dismissal of her appeal from Justice Court and the

court's denial of her motion for reconsideration. We reverse and

remand this matter to the District Court.

On March 4, 1994, Schindler was found guilty in Justice Court

of the misdemeanor offenses of assault and criminal mischief. The

Justice Court entered what it considered a final judgment and

adjourned.

On March 14, 1994, Schindler's counsel sent, via facsimile

(fax), a Notice of Appeal to the Sheriff's office. The Sheriff's

office was authorized to accept faxes for the court. Schindler

alleges the fax was sent at 4:54 p.m. and completed transmission at

4:56 p.m. Respondent State of Montana (State) alleges the fax was

received at 5:Ol p.m.

On April 8, 1994, the State filed a motion to dismiss,

alleging that the appeal was not filed on time. On April 27, 1994,

the District Court dismissed the appeal, stating only that the

notice of appeal was untimely. Schindler filed a motion for

reconsideration which was denied on May 11, 1994. This appeal

followed.

The sole issue on appeal is whether Schindler timely filed the

notice of appeal from Justice Court to District Court.

The State primarily relies on § 46-17-311, MCA, to determine

that Schindler's appeal was not filed on time. Section 46-17-311,

MCA, provides in part:

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(1) Except for cases in which legal issues are

preserved for appeal pursuant to 46-12-204, all cases on

appeal from the justice's or city court must be tried

anew in the district court and may be tried before a jury

of six selected in the same manner as for other criminal

cases. . . .

(2) The defendant may appeal to the district court

by filing written notice of intention to appeal within 10

days after a judgment is rendered following trial. . .

The State relies on State v. Arthur (19881, 234 Mont. 75, 761

P.2d 806, for its contention that Schindler's notice of appeal was

not filed on time. In Arthur, the defendant's conviction took

place on November 18 and the ten-day time limit for notice of

appeal fell on a Saturday. Arthur, 761 P.2d at 807. As a result,

we applied 5 l-l-307, MCA, and held that the defendant had until

Monday, November 30 to file. The notice was mailed on November 30

and received on December 1. Arthur, 761 P.2d at 807. We concluded

that a written notice of appeal had to be physically filed within

10 days after judgment and that the defendant's mailed notice of

the appeal was not filed on time. Arthur, 761 P.2d at 809; see 5

46-17-311, MCA (1987). Our 1988 holding in Arthur, however, is not

applicable to the present case because of the change in the method

for computing the time limit for filing notices of appeal from

Justice and City Courts.

On February 9, 1990, we adopted the Montana Justice and City

Court Rules of Civil Procedure. Our Montana Justice and City Court

Rules of Civil Procedure appear in Volume 4 of the Montana Code

Annotated, commencing at page 1179. Rule 6 provides in part:

A. COMPUTATION. When the computation of any period

of time prescribed or allowed by these rules is by order

of a court or by any applicable statute, the day of the

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act, event, or default.after which the designated period

of time begins to run may not be included. The last day

of the period so computed must be included unless it is

a Saturday, Sunday, or legal holiday, in which event the

period runs until the end of the next day that is not a

Saturday, Sunday, or legal holiday.

B. EXTENSION. When by these rules, by a notice

given under these rules, or by order of a court an act is

required or allowed to be done at or within a specified

time, the judge for cause shown may extend the period if

a motion is made before the expiration of the period

originally prescribed or extended by previous permission

of the court or after expiration of the specified period

if failure to act was the result of excusable neglect.

C. ADDITIONAL TIME AFTER SERVICE BY MAIL. Whenever

a party has the right or is required to do an act or take

a proceeding within a prescribed period after service of

a notice or other paper and the notice or other paper is

served by mail, 3 days must be added to the prescribed

period.

The foregoing rule, however, is not determinative.

In addition to the foregoing Rules of Civil Procedure, this

Court adopted the Montana Uniform Rules for Justice and City Courts

(Uniform Rules) which became effective June 1, 1993. These rules

appear in Volume 4 of the Montana Code Annotated, commencing at

page 1198. Rule 1 provides as follows:

Rule 1. Scope of Rules.

(a) These rules, together with the Montana

Justice and City Court Rules of Civil Procedure,

govern the practice in all justice and city courts

of the state of Montana.

Further, Rule 21, establishes the following time computation:

Rule 21. Time computation

(a) Time shall be computed as provided under

Rule 6 of the Montana Justice and City Court Rules

of Civil Procedure.

(b) When the period of time prescribed or

allowed is ten days or less, intermediate

Saturdays, Sundays, and legal holidays shall

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be excluded.

We hold that Rule 21 of the Uniform Rules applies to the instant

case. Section 46-17-311, MCA, provides ten days to file a notice

of appeal. As a result, intermediate Saturdays, Sundays, and legal

holidays shall be excluded from the time computation.

The Justice Court sentenced Schindler on March 4, 1994.

Therefore, Schindler had until March 18, 1994 to file her notice of

appeal. This is ten days from the fourth, excluding Saturdays and

Sundays. Based on either party's factual contentions, the notice

was filed before March 18th. The parties' arguments about the date

and time the fax was sent, received, or filed are irrelevant.

Therefore, the notice of appeal was filed on time.

Reversed.

We coqcu