State v. Main

No. 80-233

I N THE SUPREME COURT OF THE STATE O M N A A
F OTN

1980

STATE O MONTANA,
F

P l a i n t i f f and Respondent,

JAMES JOSEPH M A I N , SR., and
VERNIE M A I N ,

D e f e n d a n t s and A p p e l l a n t s .

Appeal from: D i s t r i c t Court o f t h e Twelfth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f B l a i n e , The H o n o r a b l e
B. W. Thomas, J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

F r a n c i s X. L a m e b u l l , Harlem, Montana

F o r Respondent :

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
F r a n k Altman, C i t y A t t o r n e y , H a r l e m , Montana

S u b m i t t e d on B r i e f s : October 2 3 , 1980

Decided: F e b r u a r y 11, 1 9 8 1

Filed: FEB 11 19@
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Defendants James Joseph Main and Vernie Main were each
convicted of one count of disorderly conduct in the City
Court of Harlem, Montana. Their appeal to the Twelfth
Judicial District Court, Blaine County, was dismissed for
failure to cause timely transmission of the record. Mains
appeal from the order of dismissal.
Defendants raise the following issues:
1. Were defendantst appeals properly dismissed for
failure to cause timely transmission of the city court
record?
2. Are defendants entitled to appointed counsel on
appeal to the District Court?
During the evening of August 25, 1979, while defendants
were patronizing Kennedy's Bar in Harlem, their son arrived
and informed them he had been stabbed in the abdomen.
Defendants thereupon set out in search of the suspected
assailant, apparently intent on exacting revenge. Their
quest took them to a Harlem trailer court where they engaged
in the conduct which resulted in the charge before us.
Defendants were convicted of disorderly conduct fol-
lowing a jury trial in Harlem City Court on December 14,
1979. On the same date, the court orally imposed judgment
and sentence, and made a minute entry setting forth the
judgment and sentence. On December 24, 1979, defendants
filed notices of appeal from the City Court judgment.
Defense counsel apparently requested the City Court to
transfer the record to the District Court on January 25,
1980. Documents from the Police Court record were forwarded
to the District Court on January 28, 1980, and were received
on January 29, 1980, 35 days after the notices of appeal
were filed.
 On February 11, 1980, the City of Harlem filed motions
to dismiss the appeals for failure to transmit the records
within the time period allowed in section 46-17-311(3), MCA.
On March 17, 1980, the District Court ordered dismissal of
defendants' appeals, and ruled the question of appointed
counsel moot.
Section 46-17-311, MCA, provides:
"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 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."
Defendants advance four separate arguments which they assert
should relieve them from operation of the 30-day statutory time
limit.
Defendants first argue that they have yet to be served
with written notice of the judgments, and the 30-day limit
cannot commence until such notice is received. In State v.
Mortenson (1978), 175 Mont. 403, 574 P.2d 581, this Court
held the time for filing a notice of appeal runs from the
oral pronouncement of judgment in open court. Defendants
met their 10-day limit in this regard. We similarly hold
here the time allowable for transmission of the record is
not dependent upon written judgment where there has been an
oral pronouncement of the same in open court.
Defendants next maintain that the time limit should be
tolled during any time spent briefing the preliminary matter
of eligibility for appointed counsel. We find this argument
without merit. Defendants have not noted any authority, nor
have we discovered any, which would support their position.
To the contrary, however, timely transmission of the record
could not in any way have hampered defense counsel's efforts
on the preliminary matter; and parts of the record would
clearly have been relevant to the District Court's inquiry
into the issue. The preliminary inquiry into the defendants'
indigence did not act to excuse them from their statutory
duty to cause transmission of the record.
Defendants also submit their statutory obligation was
satisfied by an alleged but unsubstantiated telephone call
on January 23, 1980, to the City Court magistrate requesting
transmission of the records. Regardless of the date of
the initial request, the records were not forwarded until
January 28, 1980. The criminal procedure code should be
considered in its entirety to determine the effect of any
one section. State v. Bush (1974), 164 Mont. 81, 518 P.2d
1406. In this instance, section 46-20-311(2), MCA, indicates
transmission of records is effected only when the clerk
forwards such records. The duty to perfect an appeal is
expressly directed to be that of the defendant. State ex
rel. Ross v. Mallory (1979), - Mont . -, 601 P.2d 385, 36
St.Rep. 1717. Defendants' failure to perfect their appeals
by seeing the records actually in transit within the time
limit mandated the dismissals pursuant to section 46-17-
311(3), MCA, notwithstanding their unsuccessful eleventh
hour efforts to cause transmission of those records.
Defendants finally assert, relying on State v. Frodsham
(1961), 139 Mont. 222, 362 P.2d 413, that they should be
entitled to trial - -
de novo at the District Court level because
the appeals were not perfected solely due to ineffectiveness
of counsel. Defendants' reliance on Frodsham is misplaced.
In that case this Court first dismissed the appeal, then
considered the substantive issues in dicta and ultimately
found no reversible error in the lower court proceedings.
The Frodsham court specifically stated it did not wish to
establish precedent in reviewing the issues. In any event,
it would have been for the District Court, had it so desired,
to review the issues as in Frodsham. We will not, based
on tenuous rationale, excuse defendants' failure to meet
explicit statutory requirements.
The District Court properly dismissed defendants' appeals
pursuant to section 46-17-311(3), MCA. The dismissals
having been properly entered, the related question of defendants'
rights to appointed counsel for purposes of trial - -
de novo
on appeal is moot.
Affirmed.

Justice

We Concur:

Chief Justice

This cause was submitted prior to January 5, 1981.