No. 13898
IN THE SUFREME COURT OF THE STATE OF MONTANA
1978
STATE OF MONTANA,
Plaintiff and Respondent,
ROGER MORTENSON,
Defendant and Appellant.
Appeal from: District Court of the Twelfth Judicial District,
Honorable B. W. Thomas, Judge presiding.
Counsel of Record:
For Appellant:
William E. Gilbert, Bozeman, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Ronald W. Smith, County Attorney, Havre, Montana
Submitted on briefs.
Submitted: January 5, 1978
Filed: .j/?p; .
M r . J u s t i c e John Conway Harrison delivered the Opinion of the
Court :
This i s an appeal from an order of the D i s t r i c t Court, H i l l
County, dismissing defendant's appeal from a j u s t i c e court
conviction f o r f a i l u r e t o give n o t i c e of appeal within the
prescribed s t a t u t o r y period.
O December 23, 1975, a complaint was f i l e d i n j u s t i c e
n
c o u r t , H i l l County, charging defendant with a v i o l a t i o n of
privacy i n communications, a misdemeanor, under s e c t i o n 94-8-114,
R.C.M. 1947. Defendant was a r r e s t e d and arraigned on December
24, 1975.
T r i a l i n j u s t i c e court was held April 7 , 1977, and
defendant was found g u i l t y . Time f o r sentencing was waived by
the defendant, and o r a l judgment was imposed i n open c o u r t ,
i n the presence of counsel, on April 7. The judgment was
reduced t o writing on April 12, 1977.
Counsel f o r defendant executed a w r i t t e n n o t i c e of appeal,
dated April 21, and i t was mailed t o the H i l l County J u s t i c e
Court on April 23, and received by the court on April 27. The
presiding j u s t i c e of the peace t h e r e a f t e r s e t an appeal bond,
which was furnished by defendant.
The D i s t r i c t Court dismissed defendant's appeal s t a t i n g :
''(2) Whether t h e appeal time i s computed from the
d a t e of t h e o r a l judgment on April 7 , 1977, o r from
the d a t e of t h e w r i t t e n judgment of April 12, 1977,
the n o t i c e of appeal was not given within ' t e n days
a f t e r judgment' a s required by R.C.M. 95-2009."
The c o n t r o l l i n g i s s u e i s whether t h e time f o r appeal from
a j u s t i c e court conviction runs from the d a t e of verbal pronounce-
ment of judgment i n open c o u r t , o r the date the judgment i s executed
by the j u s t i c e of the peace and received by defendant.
Defendant c e n t r a l l y contends t h e time f o r appeal runs
from t h e d a t e the judgment i s executed by t h e j u s t i c e of t h e
peace and received by defendant, u n t i l t h e n o t i c e of appeal
i s mailed by defendant. Given such parameters, defendant
maintains h i s n o t i c e of appeal was f i l e d w i t h i n t h e t e n day
period prescribed by s t a t u t e . W cannot agree.
e
The time allowed f o r appeal from a j u s t i c e c o u r t convic-
t i o n i s s e t i n s e c t i o n 95-2009, R.C.M. 1947:
"(b) The defendant may appeal t o t h e d i s t r i c t c o u r t
by giving w r i t t e n n o t i c e of h i s i n t e n t i o n t o appeal
w i t h i n t e n (10) days a f t e r judgment."
Section 95-2007(b), R.C.M. 1947, i n d i c a t e s judgment upon
a p l e a o r j u d i c i a l determination of g u i l t i s rendered i n open
court. There i s no requirement i n t h e Montana Code of
Criminal Procedure, s e c t i o n s 95-101 e t s e q . , R.C.M. 1947,
t h a t a j u s t i c e of t h e peace reduce t o w r i t i n g o r a l judgments,
n o r i s i t required t h a t a defendant be served a copy of a
w r i t t e n judgment. Therefore, t h e s t a t u t o r y t e n day period
f o r f i l i n g a n o t i c e of appeal runs from t h e d a t e of o r a l
pronouncement of judgment i n open c o u r t .
W f u r t h e r hold t h e w r i t t e n n o t i c e of appeal must be
e
f i l e d with t h e j u s t i c e c o u r t w i t h i n t h e t e n day period. In
t h e absence of a s p e c i f i c provision regarding j u s t i c e c o u r t s
t h i s language o f s e c t i o n 95-2413, R.C.M. 1947, i s a p p l i c a b l e :
" ( a ) F i l i n g . Papers required o r permitted t o be f i l e d
must be placed i n t h e custody of t h e c l e r k within t h e
time f i x e d f o r f i l i n g . F i l i n g may be accomplished by
mail addressed t o t h e c l e r k , b u t f i l i n g s h a l l n o t be
timely u n l e s s t h e papers a r e a c t u a l l y received w i t h i n
t h e time fixed f o r f i l i n g . ** *'I (Emphasis added.)
(19741,
See: S t a t e v. ~ u s h , / 1 6 4Mont. 81, 82, 518 P.2d 1406; S t a t e
v. Bergum, (1974), 164 Mont. 155, 156, 520 P.2d 653.
Defendant, in the instant case, was adjudged guilty in
open court on April 7, 1977. His notice of appeal was received
by the justice court on April 27, 1977, well beyond the ten day
statutory filing period. Measured by the standards outlined
herein, we find the District Court properly dismissed defendant's
appeal for noncompliance with the provisions of section 95-2009(b).
Further, even under defendant's argument the notice of appeal
was not timely.
The order of the District Court dismissing defendant's
appeal is affirmed.