No. 88-159
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
WILLIAM JO ARTHUR,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry Jent, Bozeman, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Kathy Seeley, Asst. Atty. General, Helena
A. Michael Salvagni, County Attorney, Bozeman,
Montana; Jennifer Bordy, Deputy County Attorney
Submitted on Briefs: Aug. 4, 1988
Decided: September 15, 1988
Filed.: SEP I 5 1988
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
William Jo Arthur, the defendant, was convicted of
driving under the influence of alcohol in Gallatin County
Justice Court. The District Court of the Eighteenth Judicial
District, Gallatin County, dismissed defendant's appeal from
Justice Court. Defendant appeals. We affirm.
The sole issue raised on appeal is whether 5 46-17-311,
MCA, requires an appellant from Justice Court to District
Court to file physically his notice of appeal within 10 days
after judgment.
On November 18, 1987, William Jo Arthur was found guilty
of driving under the influence of alcohol and was sentenced
in open court. The 10 day time limit for giving notice of
appeal from Justice Court to District Court would normally
have expired on November 28, 1987. However, because November
28 fell on a Saturday, the time limit was extended to the
following "working" day, Monday, November 30, 1987, as
provided by S 1-1-307, MCA. Defendant therefore had two
additional days in which to give notice of his intent to
appeal.
Counsel for the defendant executed the notice of appeal
on November 27, 1987, and mailed it on November 30, 1987, the
final day on which notice could be given. The notice was
received and filed in Justice Court on December 1, 1987. The
District Court dismissed the appeal on the ground that the
notice was not filed within the 10 day limit prescribed by 5
46-17-311, MCA.
The right to appeal a Justice Court criminal conviction
to district court is given by 46-17-311, MCA, which
provides in part:
(1) All cases on appeal from justices' or city
courts must be tried anew in the 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.
This statute is the only method by which a district
court can acquire jurisdiction over an appeal from justice
court. Because the right to appeal is given exclusively by
statute, we have consistently held that strict compliance
with 5 46-17-311, MCA, is necessary to perfect an appeal.
State v. Hartford (Mont. 1987), 741 P.2d 1337, 1338, 44
St.Rep. 1500, 1501; State v. Province (Mont. 1987), 735 P.2d
1128, 1129, 44 St.Rep. 775, 776.
Strict compliance with the statute requires that notice
be given in a timely manner. Hartford, 741 P.2d at 1338, 44
St.Rep at 1501. We have previously held that in Justice
Court the time for appeal runs from the date of oral
pronouncement of judgment in open court. State v. Mortenson
(1978), 175 Mont. 403, 405, 574 P. 2d 581, 582. The issue
that arises on this appeal is whether "giving written notice"
means simply mailing the notice of appeal within the
statutorily prescribed 10 day limitation period or whether it
requires that notice must be actually received by the court
within that period. We hold that written notice of a party's
intention to appeal a criminal conviction from Justice Court
to District Court must be physically filed with the Justice
Court within 10 days after judgment.
This holding is directly in line with a previous case
interpreting the notice provision of the Justice Court
criminal appeals statute. In Mortenson, we construed §
95-2009, R.C.M. (1947), the predecessor of 5 46-17-311, MCA.
Like the present statute, S 95-2009, R.C.M. (19471, spoke
only of "giving written notice" of intent to appeal. It did
not .mention actual filing. Even so, we concluded that
"written notice of appeal must be filed with the Justice
Court within the ten day period. " Mortenson, 175 Mont. at
405, 574 P.2d at 582. (Emphasis added.) We continued,
In the absence of a specific provision regarding
Justice Courts this language of section 95-2413,
R.C.M. 1947, is applicable:
(a) Filing. Papers required or permitted to be
filed must be placed in custody of the clerk within
the time fixed for filing. Filing may be
accomplished by mail addressed to the clerk, - but
filing shall - - timely unless the papers -
not be are
actually received within - - fixed for filing.
the time
Mortenson, 175 Mont. at 405, 574 P.2d at 582.
Section 95-2413, R.C.M. (1947), quoted above, later
became § 46-20-502, MCA, which was superseded by amendments
to the Montana Rules of Appellate Procedure by Supreme Court
Order of June 16, 1986, effective January 1, 1987.
Throughout these changes, however, the wording of the statute
remained the same, and the pertinent part of Rule 20(a),
M.R.App.P., is identical to the 1947 statute cited in
Mortenson. The only difference between Rule 20(a) and f
95-2413, R.C.M. (1947) is that the latter statute governed
criminal appeals from all Montana courts, while the Rules of
Appellate Procedure explicitly cover criminal appeals from
the District Courts to the Supreme Court only. Rule 1 (a),
M.R.App.P. Despite this change, the reasoning of Mortenson
is as applicable today as it was in 1978, and the Rules of
Appellate Procedure may be applied to clarify the language of
the Justice Court criminal appeals statute.
Our determination that giving written notice means
actual filing is consistent with recent cases construing S
46-17-311, MCA. In State v. Tecca (Mont. 1986), 713 P.2d
541, 43 St.Rep. 180, the defendant filed a notice of appeal
five days after sentencing. The notice was defective,
however, because it improperly stated that the appeal was to
Justice Court rather than District Court. Defendant then
filed a corrected notice of appeal. We agreed with the
District Court that the corrected notice, filed 11 working
days after judgment, was not timely. We overturned the
District Court's dismissal of the appeal, however, because
the Justice Court had actually received notice of appeal
within the 10-day limitation period. -- Hartford, 741
See also,
P.2d at 1338, 44 St.Rep. at 1501; and Province, 735 P.2d at
Our position is further supported by our decision in
Schaffer v. Champion Home Builders Co. (Mont. 1987), 747 P.2d
872, 44 St.Rep. 2196. In that case, a civil wrongful death
action, plaintiff had mailed his complaint three working days
prior to the expiration of the statute of limitations. The
complaint was not received by the court until one day after
the limitation period had expired. We concluded that filing
is not the same as mailing. "Unlike service by mail, which
is complete on the date of mailing, filing by mail is not
complete until the pleading is placed in the custody of the
clerk of court." Schaffer, 747 P.2d at 874, 44 St.Rep. at
2198.
Our holding that "giving written notice" requires
physical filing with the court furthers the policy of the
limitation period by insuring that appeals from Justice Court
judgments are undertaken in a timely manner. The duty of the
appellant is to make certain that written notice of appeal is
actually received by the clerk of the Justice Court within 10
days after oral pronouncement of judgment.
Although William Jo Arthur mailed his notice of appeal
within the time frame prescribed by the appeals statute, the
Justice Court did not receive the notice until one day after
the limitation period had expired. Hence, Arthur did not
meet the dictates of § 46-17-311, MCA.
The Distri.ct Court's order dismissing the appeal is
affirmed.
We concur:
1