No. 14973
IN THE SUPREME COURT OF THE STATE OF M N A A
OTN
1980
STATE OF MONTANA,
P l a i n t i f f and A p p e l l a n t ,
vs .
CHARLES SANCHEZ,
D e f e n d a n t and R e s p o n d e n t .
A p p e a l from: D i s t r i c t Court of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
Honorable A l f r e d B. C o a t e , Judge p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
J o h n S. F o r s y t h e , F o r s y t h , Montana
For Respondent :
C l a r e n c e T . B e l u e , H a r d i n , Montana
S u b m i t t e d on b r i e f s : F e b r u a r y 2 7 , 1980
Filed: ,
. 5, c'GQ
-Y
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal from an order entered in Rosebud
County District Court dismissing the State's appeal of
this cause from justice court. The sole issue presented
for review is whether the State may appeal a dismissal order
of a justice court pursuant to section 46-20-103, MCA?
Charles Sanchez was brought to trial in Rosebud County
Justice Court on June 6, 1979 on misdemeanor charges of
reckless driving and obstructing a peace officer. Sanchez
entered a plea of guilty to the reckless driving charge but
went to trial on the remaining charge. On the second day
of trial the justice of the peace granted Sanchez's motion
to dismiss, discharged the jury and released Sanchez.
The State sought to appeal the justice court dismissal
by a trial - -
de novo in District Court. A show cause hearing
was held on June 27, 1979. Subsequently on July 12, 1979,
the District Court issued an order denying the State's
right of appeal on the grounds that the State had no statutory
authority to appeal a dismissal in a criminal case.
On July 19, 1979, an attempt was made to refile the
charge in justice court. The justice court dismissed the
complaint on double jeopardy grounds.
On August 8, 1979, the State filed a petition in this
Court for a writ of supervisory control directing the filing
of the requested information. The petition was denied on
September 4. 1979 for the reason "the remedy by appeal is
plain. speedy and adequate" thus precluding issuance of an
extraordinary writ.
The State now appeals from the July 12, 1979 dismissal
order of the District Court.
Solution of the issue presented for our review is found
in the 1972 Mont. Const. Art. VII, 54, which delineates the
jurisdiction of district courts. Subsection 2 states in
part: "The district court shall hear appeals from inferior
courts as trials anew unless otherwise provided by law.. . ."
Turning to Title 46, the Criminal Procedure Title of
the Montana Codes Annotated, and in particular, chapter 17
concerning lower court proceedings, we find part 3 entitled
"Procedure After Trial--Justices1 and City Courts." Section
46-17-311, MCA, states:
"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) The defendant may appeal to the district
court by giving written notice of his intention
to appeal within 10 days after judgment.
" (3) Within 30 days, the entire record of the
justice's [sic] or city court proceedings must be
transferred to the district court or the appeal
must be dismissed. It is the duty of the defendant
to perfect the appeal."
However, as we shall see, this statute is applicable only to
appealing defendants and does not grant the State an appeal.
In the present case, it appears the cause was dismissed
in justice court pursuant to defendant's motion which was
premised on denial of defendant's constitutional right to
compel witnesses to testify on his behalf in accordance with
1972 Mont. Const. Art. 11, S24. A witness subpoenaed by
both parties testified for the prosecution but failed to
appear for the defense. As previously noted the District
Court dismissed the State's appeal for lack of jurisdiction,
and we agree.
Appellant argues that this appeal is not brought pursuant
to section 46-17-311, the trial - -
de novo statute, but pursuant
to section 46-20-103(2) (a) instead which provides:
"Scope of appeal & state. (1) Except as
otherwise specifically authorized, the state
may not appeal in a criminal case.
"(2) The state may appeal from any court order
or judgment the substantive effect of which
results in:
" (a) dismissing a case;"
Statutes granting the right of appeal to the state in
criminal actions must be strictly construed and limited to
the instances mentioned. State v. Hagerud (1977), 174 Mont.
361, 366, 570 P.2d 1131, 1134; State v. Cool (1977), 174 Mont.
99, 102, 568 P.2d 567, 568; State v. Peck (19281, 83 Mont.
Although the statutes in question are not identical to
those concerned within the immediate case, we find the
reasoning in Forsythe v. Wenholz (1976), 170 Mont. 496, 554
P.2d 1333 applicable to the instant case. In that case we
stated:
"Initially, we note this Court in State v.
Bush, 164 Mont. 81, 518 P.2d 1406, stated:
I I
I . ..since the code [of criminal procedure]
was adopted as one comprehensive piece of
legislation it should be considered in its
entirety to determine the effect of any one
section. '
"The district court was correct in excluding
justices of the peace from the purview of
section 95-2101 because the particular context
of that section in Montana's Code of Criminal
Procedure clearly requires a different meaning
than that propounded by the appellant, Section
95-201, R.C.M. 1947. Chapter 20, Title 95,
R.C.M. 1947 'Justice and Police Court Proceedings',
was accompanied by a Criminal Law Commission
Comment which states in part:
"'This Chapter includes only those sections which
are peculiar or apply exclusively to justice and
police courts.. . .'
"In Chapter 20, the only post-trial relief afforded
is an appeal to the district court for a trial
de novo. Section 95-2009, R.C.M. 1947." [Now
section 46-17-311, MCA]. Forsythe, 170 Mont. at
498-99, 554 P.2d at 1334-35.
S e c t i o n 46-20-103, MCA, when t a k e n i n c o n t e x t w i t h a l l
of t h e s e c t i o n s and p r o v i s i o n s of T i t l e 46 and c o n s i d e r e d i n
l i g h t o f how t h e o r i g i n a l code o f c r i m i n a l p r o c e d u r e was
a r r a n g e d and a d o p t e d , l e a d s u s t o c o n c l u d e t h a t t h e s c o p e of
t h e s e c t i o n a p p l i e s o n l y t o Montana d i s t r i c t c o u r t s and n o t
t o justice courts. A s a r e s u l t t h e S t a t e h a s no r i g h t t o
appeal t h e f i n a l decision of a j u s t i c e c o u r t i n a criminal
c a s e , whether i t be p u r s u a n t t o s e c t i o n 46-20-103, MCA, or
s e c t i o n 46-17-311, t h e t r i a l de -
- novo s t a t u t e . S t a t e v. Bush
( 1 9 7 4 ) , 164 Mont. 81, 518 P.2d 1406, a p p l i e s o n l y t o i n t e r l o c u t o r y
o r d e r s of t h e j u s t i c e court.
The d e c i s i o n o f t h e D i s t r i c t C o u r t i s a f f i r m e d .
J
j Justice d
W e Concur:
Chief J u s t i c e