No. 87-27
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DARREL JAMES KESLER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeannette Ellen Berry, Helena, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena, Montana
A. Michael Salvagni, County Attorney, Bozeman, Montana
Marty Lambert, Deputy County Attorney, Bozeman
Submitted on Briefs: June 2 5 , 1987
Decided: September 1, 1987
Filed: SE? 1- 1987
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Darrel James Kesler appeals a Gallatin County District
Court judgment finding him guilty of driving while under the
influence of alcohol in violation of $ 6 1 - 8 - 4 0 1 , MCA. The
sole issue on appeal is whether the District Court has
appellate jurisdiction to review a Justice Court order
suppressing evidence. We affirm.
On November 2 4 , 1 9 8 5 , Darrel James Kesler was arrested
and charged with the offense of driving while under the
influence of alcohol in violation of $ 6 1 - 8 - 4 0 1 , MCA. Kesler
entered a plea of not guilty in Gallatin County Justice Court
on December 3, 1 9 8 5 . The Justice Court set the pretrial
conference for March 2 4 , 1 9 8 6 , and ordered that all pretrial
motions be filed twenty days prior to the conference. Trial
in Justice Court was set for April 8, 1 9 8 6 .
On February 1 4 , 1 9 8 6 , Kesler moved to dismiss the
complaint on the grounds that the State had failed to make
the arresting officer's report available in accordance with a
local Justice Court rule. The Justice Court rule requires
that the State provide discovery within sixty days of a "not
guilty" plea. The arresting officer of the Montana Highway
Patrol did not prepare a formal report until sometime in
February of 1 9 8 6 . The State received the report on February
1 4 , 1 9 8 6 , and defense counsel received a copy on February 1 9 ,
1986.
The Justice Court heard Kesler's motion to dismiss on
March 5 , 1 9 8 6 . In its memorandum and order of March 7, 1 9 8 6 ,
the Justice Court denied the motion to dismiss and ordered
instead that any evidence from the arresting officer be
suppressed. On March 1 2 , 1 9 8 6 , the State appealed the
Justice Court suppression order to the Gallatin County
District Court pursuant to 55 46-17-311(2), MCA, and
46-20-103 (2) (e), MCA.
On June 6, 1986, Kesler filed a motion in District
Court to affirm the Justice Court suppression order. The
District Court denied this motion and stated that "[ilt has
been the long-standing rule in Montana that district courts
do not have supervisory or appellate reviewing powers over
justice courts." The District Court set trial for September
12, 1986. Kesler then applied for a writ of supervisory
control to this Court on September 9, 1986, therein alleging
the same issue as presented by this appeal. This Court
denied Kesler's application.
Prior to trial, Kesler moved to dismiss on the grounds
that the District Court had appellate jurisdiction only and
that Justice Court sanctions against the State are not
appealable within the meaning of the statutes. The District
Court denied both motions. On September 12, 1986, a Gallatin
County jury found Kesler guilty of driving while under the
influence of alcohol. The District Court later sentenced
Kesler to twenty-four hours in the Gallatin County Detention
Center and a $300 fine. The District Court also ordered that
Kesler's driver's license be suspended for six months and
that he attend the court's alcohol and drug abuse school.
This appeal followed.
Kesler argues on appeal that the District Court should
have assumed appellate jurisdiction and reviewed only the
Justice Court suppression order. A trial de novo, Kesler
argues, is not within the District Court's appellate
jurisdiction under the circumstances presented by this case.
However, Kesler's arguments overlook the clear statutory
language of 5 46-17-311, MCA, which provides the following in
pertinent part:
(1) All cases on appeal from justices'
or citv courts - -be tried anew in the
must
&
district court ...
(2) A party may appeal to the district
court by giving written notice of his
intention to appeal within 10 days after
judgment, except that the state may only
appeal in the cases provided for in
46-20-103.
Section 46-20-103, MCA, provides:
(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:
(el suppressing evidence;
In addition, the Montana Constitution provides that "[tlhe
district court shall hear appeals from inferior courts as
trials anew unless otherwise provided by law." Mont. Const.
art. VII, § 4(2), Mont. Const. Finally, § 25-33-301(1), MCA,
states that "[all1 appeals from justices' or city courts must
be tried anew in the district court ... "
Kesler contends that subsections (1) and (2) of
S 46-17-311, MCA, are ambiguous in that the former subsection
requires trial de novo and the latter subsection makes
reference to a statute, 5 46-20-103, MCA, that does not
contemplate trial de novo. Kesler reasons that 5 46-20-103,
MCA, pertains specifically to district court appeals to this
Court and is designed solely to trigger interim appellate
review. He concludes by asserting that this ambiguity should
be settled in his favor to reverse his conviction.
We find that the statutes in question are not ambiguous
as applied to the circumstances of this case. Section
46-20-103, MCA, merely lists those general instances in which
the State may undertake an appeal from a lower court to a
higher court. Nothing in the statute can be construed to
prohibit trial de novo in a court of competent jurisdiction.
In this case, the District Court was specifically vested with
jurisdiction for a trial de novo on an appeal from Justice
Court by S 46-17-311(1), MCA, S 25-33-301(1), MCA, and by
art. VII, § 4(2), of the Montana Constitution.
Assuming arguendo that there is some ambiguity between
S; 46-17-311, MCA, and § 46-20-103, MCA, defendant has not
convinced us that the legislature intended to prohibit a
trial de novo when it amended the former statute to include
the cross-reference to the latter statute. The legislative
history of the 1985 amendment reveals that the intent of the
legislature was to overrule this Court's decision in State v.
Sanchez (1980), 187 Mont. 434, 438, 610 P.2d 162, 164,
wherein we held that "the State has no right to appeal the
final decision of a justice court in a criminal case. . . ."
Section 46-17-311(2), MCA, as amended, now permits the
State to appeal justice court orders and judgments in certain
circumstances. The clear intent of S 46-17-311(1), MCA, is
to require a trial de novo in district court on all appeals
from justice court. The legislature could have prohibited a
trial de novo in district court by amending subsection (1) of
46-17-311, MCA. The legislature did not prohibit trial de
novo when it amended the statute and we will not judicially
amend the statute to create such a prohibition.
Kesler asserts that the Justice Court's grounds to
suppress evidence does not allow a similar motion to suppress
to be made in the District Court. For that reason, he
apparently chose not to move to suppress any evidence in the
District Court, but rather sought to have the Justice Court
suppression order affirmed. Without ruling on the propriety
of the Justice Court's suppression of evidence in this case,
we recognize that a motion to suppress evidence can be
asserted at either the justice court or the district court
level if a defendant's constitutional rights have in fact
been violated. If Kesler had sufficient constitutional
grounds to move for suppression of evidence in Justice Court,
those grounds could have been reasserted in District Court in
a new motion to suppress. We note here that Kesler did not
move for suppression of evidence in either Justice Court or
District Court. The Justice Court chose to suppress evidence
on its own initiative rather than to dismiss the complaint as
Kesler requested.
Kesler also contends that the effect of a trial de novo
in this case is to deprive him of his constitutional due
process and equal protection rights. He argues that the
State's appeal to District Court serves to avoid the
consequences of the Justice Court suppression order.
Kesler's argument in this regard is without merit. On the
one hand, Kesler alleges that his constitutional rights were
violated by the State's failure to provide a nonexistent
report in the time prescribed by the Justice Court rule. On
the other hand, Kesler failed to move to suppress the report
in either Justice Court or District Court. As previously
discussed, Kesler could have moved to suppress this evidence
in District Court had he constitutional grounds to do so.
Kesler made no such motion and the constitutionality issue is
not properly before us on this appeal.
We again emphasize that a criminal case on appeal from
justice court to district court must be tried anew in the
district court pursuant to S 46-17-311, MCA, regardless of
which party appeals. Accord State v. Waymire (Mont. 1 9 8 7 ) ,
P.2d , 44 St.Rep. 759; Adair v. Lake County Justice
Court (Mont. 1984), 692 P.2d 13, 41 St.Rep. 2241.
Accordingly, we hold that a district court does not have
appellate jurisdiction to review a justice court order
suppressing evidence. Nothing in this opinion should be
construed to expand or limit the scope of the State's right
to appeal as set forth in § 46-20-103 (2), MCA
Affirmed.
We Concur: