No. 86-494
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
THE STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
RICHARD LYLE PROVINCE,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Robert F.W. Smith, Asst. Atty. General, Helena
A. Michael Salvagini, County Attorney, Bozeman,
Montana; Duke R. Wolf, Deputy County Attorney
For Respondent :
Leanne M. Schraudner, Rozeman, Montana
Submitted on Briefs: Jan. 29, 1987
Decided: April 17, 1987
Filed: AT-R 1;' 1387
Clerk
Mr. J u s t i c e William E. Hunt, Sr., d e l i v e r e d t h e Opinion o f
t h e Court.
The State appeals from an order from t h e Eighteenth
J u d i c i a l D i s t r i c t , G a l l a t i n County, Montana, d i s m i s s i n g a D U I
c h a r g e f o r f a i l u r e o f t h e S t a t e t o g i v e n o t i c e of a p p e a l from
j u s t i c e court t o t h e defendant. W e affirm.
The issue raised on appeal is whether the State is
r e q u i r e d t o s e r v e n o t i c e o f i t s a p p e a l from t h e j u s t i c e c o u r t
on d e f e n d a n t .
The d e f e n d a n t , R i c h a r d Lyle P r o v i n c e , was a r r e s t e d f o r
d r i v i n g u n d e r t h e i n f l u e n c e o f a l c o h o l on March 7 , 1986. The
d e f e n d a n t p l e a d n o t g u i l t y and t r i a l was s e t f o r J u l y 15,
1986.
Defendant made s e v e r a l r e q u e s t s t o t h e S t a t e t o p r o v i d e
t h e w r i t t e n r e p o r t from t h e a r r e s t i n g o f f i c e r . The r e p o r t
was n e v e r p r o v i d e d t o him. O J u l y 9,
n 1986, t h e d e f e n d a n t
moved t o d i s m i s s t h e c a s e f o r f a i l u r e o f t h e p r o s e c u t i o n t o
comply w i t h t h e c o u r t ' s discovery r u l e . The j u s t i c e c o u r t
g r a n t e d t h e motion. Neither s i d e raised t h e i s s u e of the
justice court's jurisdiction and dismissal of the charge
under these circumstances and we do not rule on that
question. The S t a t e promptly f i l e d a n o t i c e o f a p p e a l i n t h e
j u s t i c e c o u r t , b u t neglected t o serve n o t i c e of t h i s appeal
on the defendant or his counsel. On J u l y 23, 1986, the
defendant received a D i s t r i c t Court minute e n t r y r e q u e s t i n g
the defendant to make an initial appearance before the
D i s t r i c t Court. The minute e n t r y provided no information
with respect t o t h e charges a g a i n s t t h e defendant, n o r was
t h e r e any i n d i c a t i o n t h a t t h e minute e n t r y was a r e f e r e n c e t o
a n a p p e a l from j u s t i c e c o u r t .
Defendant made a motion to dismiss for failure of the
State to perfect its appeal. The District Court granted the
motion. The State appeals.
In their arguments, both parties dissect and attempt to
interpret § 46-17-311, MCA, which provides for an appeal from
justice court. The parties discuss what "giving written
notice of his intention to appeal . . ." means, citing case
law and commission comments to the Code, none of which is
compelling.
Until recently the State was not allowed to appeal a
ruling in favor of the defendant. Consequently, much of the
history and case law is in reference to the defendant
appealing from an unsatisfactory judgment in favor of the
State. Now, under § 46-17-311, MCA, amended in 1985, either
party can appeal certain actions. Regardless of which party
is appealing, this Court has consistently held that
compliance with the statute is required to perfect an appeal
because it is exclusively a statutory right.
The State cites cases supporting its contention that
strict compliance with the statutory requirement of "giving
written notice of his intention to appeal" means no more than
giving the justice court written notice. State ex rel. Ross
v. Mallory (1979), 184 Mont. 29, 601 P.2d 385; State v.
Mortenson (1978), 175 Mont 403, 574 P.2d 581. These
decisions are distinguishable. In Mallory the defendant
failed to file his notice of appeal with justice court. In
Mortenson the defendant did not file his appeal within the
time allowed by statute.
We hold that "giving written notice of an intention to
appeal" under 46-17-311, MCA, requires that defendant
receive notice. In the case at hand the State failed to
perform that which was required. Namely, the State failed to
serve notice of appeal upon defendant. The rationale for
requiring that the defendant be served with notice of an
appeal by the State was best summarized by the District Court
judge in this case.
It is patently unfair to permit the state to appeal
against a defendant who has no idea that the case
is still alive and that he still faces criminal
sanctions;
Notice was not, nor has it ever been served upon the
defendant, Richard Province, or counsel for the defendant.
The State cannot be allowed to circumvent procedural due
process by relying on a clerk's minute entry as adequate
notice of appeal to the defendant. The record shows that an
unsigned certificate of service upon the defendant at the
bottom of the notice of appeal indicating that the State
failed to comply with that which it knew to be a mandatory
requirement. The failure to serve notice of appeal on the
defendant lies solely with the appellant.
The decision of the District Court dismissing the appeal
is affirmed.
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We Concur:
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Chief Justice