No. 81-306
I N THE SUPREME COURT OF THE STATE OF M N A A
O T N
1981
STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
VS .
ROBERT V. CRANE,
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 F i r s t J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f Lewis a n d C l a r k
Honorable Nat A l l e n , Judge p r e s i d i n g .
Counsel 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
C h a r l e s A. G r a v e l e y , County A t t o r n e y , H e l e n a , Montana
For Respondent:
W i l l i a m D e e Morris, M i s s o u l a , Montana
Submitted on b r i e f s : September 3 , 1981
Decided : JAW 2 1 1382
Filed. .JAN 2 1 1982
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
The State of Montana appeals a First Judicial Dis-
trict decision granting defendant Robert Crane habeas corpus
and releasing him from jail after serving forty-four days of
his 121-day sentence.
On July 7, 1978, the Montana Department of Revenue
filed a complaint against Robert Crane, d/b/a Crane's
Fabrics, for violation of section 84-2401, R.C.M. 1947 (now
section 15-57-102, PICA), operating a store without a valid
retail license. Such violation is a misdemeanor under
section 84-2411, R.C.M. 1947 (now section 15-57-110, MCA).
Crane was tried and convicted by a six-person jury on
December 13, 1978. On January 4, 1979, he was fined $1,200,
of which $1,000 would be suspended if Crane purchased the
$11.00 license within twelve days.
On January 12, 1979, Crane filed a notice of appeal
with the Justice of the Peace, but he failed to have the
court records transferred to the District Court. The Depart-
ment of Revenue moved to revoke the suspended sentence. The
Justice of the Peace gave Crane until July 2, 1979, to pay
the entire $1,200 fine or face a 121-day jail sentence ($10
a day, plus one day for contempt). No fine was paid, and
the Department of Revenue petitioned the Justice of the
Peace to set a date for Crane to show cause why he should
not be held in contempt. A show cause hearing was held on
February 6, 1981, and on February 9, 1981, Crane was ordered
to pay the fine by February 15, 1981, or go to jail. On
February 16, 1981, Crane appeared at the Lewis and Clark
County jail and began serving his 121-day sentence.
Crane petitioned the First Judicial District Court
f o r a w r i t of c e r t i o r a r i b u t was g r a n t e d a w r i t o f habeas
corpus. The D i s t r i c t C o u r t f o u n d t h a t $ 2 0 0 , n o t $ 1 , 2 0 0 , was
the proper fine and released Crane from jail, as he had
already served forty-four days, which at $10 a day far
e x c e e d e d t h e $200 f i n e . The S t a t e o f Montana a p p e a l s t h e
District Court's decision.
Throughout t h i s c a s e Crane h a s c l a i m e d t h a t he t r a n s -
ferred all his property to the Freedom Church, which he
f o u n d e d i n 1976 and w h i c h m e t a t t h e " C r a n e ' s F a b r i c s " s t o r e
until it burned. He also claims he has taken vows of
p o v e r t y and i s t h u s i n d i g e n t . T h e r e f o r e , he c l a i m s he can-
not afford t o pay taxes, f i n e s or attorney fees. He h a s
p r o c e e d e d p r o s e w i t h t h e e x c e p t i o n o f some v o l u n t a r y l e g a l
assistance on his brief for this appeal. Regardless of
whether Crane h a s the money, it is the Freedom Church's
position, and h i s p o s i t i o n , t h a t t h e r e t a i l l i c e n s e tax is
u n c o n s t i t u t i o n a l , and Crane t h e r e f o r e r e f u s e s t o pay i t .
Four issues are raised on appeal: ( 1 ) Did the
defendant properly p e r f e c t h i s appeal t o t h e D i s t r i c t Court?
( 2 ) Did t h e D i s t r i c t C o u r t h a v e j u r i s d i c t i o n t o g r a n t a w r i t
of c e r t i o r a r i ? ( 3 ) Did t h e D i s t r i c t C o u r t h a v e j u r i s d i c t i o n
to grant a writ of habeas corpus? ( 4 ) Did the District
C o u r t e r r i n r e d u c i n g t h e f i n e from $ 1 , 2 0 0 t o $ 2 0 0 ?
The first issue presented on a p p e a l is whether the
defendant properly perfected his appeal to the District
Court. W f i n d t h a t he d i d n o t .
e
The pertinent Montana statute, section 95-2009,
K.C.M. 1947 (now s e c t i o n 46-17-311, MCA), provides in part:
" ( 2 ) The d e f e n d a n t may a p p e a l t o t h e d i s t r i c t
c o u r t by g i v i n g w r i t t e n n o t i c e o f h i s i n t e n -
t i o n t o a p p e a l w i t h i n 10 d a y s a f t e r judgment.
"(3) Within 30 days, the entire record of the
justice or police 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." ( Em-
phasis added. )
Although the defendant filed the necessary written
notice, he did not have the court records transferred to the
District Court within thirty days or within a forty-five-day
extension. As the above statute provides, and as this Court
has strictly construed, it is the defendant's duty to per-
fect the appeal. State v. Main (1981), Mont . , 623
P.2d 1382, 1383-1384, 38 St.Rep. 205 (appeal dismissed
because court records were not properly transferred); State
ex rel. Ross v. Mallory (1979), - Mont. -, 601 P.2d 385,
385-386, 36 St.Rep. 1717 (written appeal given to wrong
court); State v. Mortenson (1978), 175 Mont. 403, 574 P.2d
581, 582 (no written appeal within ten days of oral judg-
ment); State v. Bush (1974), 164 Mont. 81, 518 P.2d 1406,
1407 (appeal bond was not posted). Thus, the defendant
waived his appeal by failing to perfect it.
The second issue presented on appeal is whether the
District Court had jurisdiction to grant a writ of cer-
tiorari. We hold that it did not.
Montana statute, section 93-9002, R.C.M. 1947 (now
section 27-25-101 et seq., MCA), provides that certiorari
may be granted "by the district court . . . [I] when an
inferior tribunal . . . has exceeded the jurisdiction of
such tribunal . .. and [2] there is no appeal, [3] nor, in
the judgment of the court, any plain, speedy, and adequate
remedy." See also, Matter of DeWar (1976), 169 Mont. 437,
548 P.2d 149, 153. If any one of the three necessary
elements is missing, certiorari cannot be granted. State v.
District Court (1948), 122 Mont. 61, 198 P.2d 761, 765.
There has been no evidence presented, or authority
cited, indicating that the Justice of the Peace Court ex-
ceeded its jurisdiction. Appeal, which is a "plain, speedy,
and adequate remedy," was available but was not perfected.
Thus, all three elements necessary for the District Court to
grant certiorari are missing, and the District Court had no
jurisdiction to grant certiorari. See, e.g., McVay v. McVay
(1954), 128 Mont. 31, 270 P.2d 393, 395 (no certiorari
available when appeal waived); State v. District Court
(1952), 125 Mont. 481, 240 P.2d 854, 861 (no certiorari
granted if appeal available); White v. Corbett (1935), 101
Mont. 1, 52 P.2d 156, 157 (no certiorari granted if appeal
available).
The third issue raised on appeal is whether the
District Court had jurisdiction to grant a writ of habeas
corpus. We hold that it did not.
Montana statute clearly outlines the prerequisites
for a writ of habeas corpus. Requirements which have not
been met in the instant case include: (1) application for
writ, section 46-22-201, MCA; (2) verification by oath or
affirmation, section 46-22-201, MCA; (3) service to county
attorney, section 46-22-205, MCA; (4) hearing, section 46-
22-304, MCA; and (4) production of evidence, section 46-22-
305, MCA.
At the defendant's hearing on his application for
writ of certiorari, the court decided to treat the appli-
cation as one for habeas corpus. As previously noted, the
defendant here failed to properly prepare a petition for
habeas corpus, and the District Court did not have juris-
diction to consider such a writ. See, Stubben v. Flathead
Cty. Dept. of Public Welfare (1976), 171 Mont. 111, 556 P.2d
904. However, this Court or the District Court will
liberally construe a jailed pro se defendant's petition for
relief.
". .
. we realize there will be many cases
where prisoners may have good grounds for
petitioning this Court for relief and are
unable to secure the assistance of an attor-
ney because of their financial condition, or
otherwise. In those instances we give every
reasonable inference that we can to such
petitions to see whether the same are suffi-
cient to justify a hearing upon the issues
raised, if any." Brake v. State (Okl. 1963),
380 P.2d 95, 96.
The facts determined by the District Court suggest
that there was a proper basis for a petition of habeas
corpus if one had been properly prepared and served.
The fourth issue raised on appeal is whether the
District Court erred in reducing the fine from $1,200 to
$200. Because of our holding in this case, we need not
address this issue.
We reverse and remand this matter to the District
Court with directions that the matter be held in abeyance
for a period of thirty days during which time the petitioner
shall prepare, serve and submit a properly prepared petition
in habeas corpus for the court's consideration.