NO. 91-265
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
V.
VIRGINIA POLLOCK WILSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randy S. Laedeke, Laedeke Law Office,
Billings, Montana
For Respondent:
Hon. Marc Racicot, Montana Attorney General,
George Schunk, Assistant Attorney General,
Helena, Montana; Dennis Paxinos, Yellowstone
County Attorney, Billings, Montana
I. . -. .,
,
Submitted on Briefs: December 12, 1991
Decided: March 19, 1992
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant Virginia Pollock Wilson appeals from an order of the
Thirteenth Judicial District Court, Yellowstone County, granting
the State's motion to dismiss for lack of subject matter
jurisdiction and remanding the case back to Justice Court for
sentencing and final judgment. We affirm.
Defendant raises two issues for this Court to consider.
1. Whether the District Court had subject matter
jurisdiction over a D.U.I. case when the notice of appeal was filed
prior to the Justice Court rendering sentencing and final judgment.
2. Whether the District Court erred when it dismissed
defendant's case and remanded it back to Justice court for
sentencing without allowing defendant the opportunity to respond to
the State's motion to dismiss as provided by Rule 2 of the Uniform
District Court Rules and Rule 6, M.R.Civ.P.
On October 9, 1990, defendant was charged with driving a motor
vehicle while under the influence of alcohol, third offense,
pursuant to 5 61-8-401, MCA (1989), and driving while privilege to
do so is suspended or revoked pursuant to 5 61-5-212, MCA (1989).
On February 5 , 1991, defendant was tried without a jury in
Justice Court. At the conclusion of trial, the Justice of the
Peace orally pronounced defendant guilty of the charges and ordered
defendant to obtain an alcohol evaluation at her own expense and
return for sentencing on February 26, 1991. On February 7 , 1991,
the Justice Court issued a written order and mailed it to the
respective parties.
On February 11, 1991, defendant filed a notice of appeal to
the Thirteenth Judicial District Court and the case was transferred
to District Court on March 11, 1991. On March 28, 1991, the State
filed a motion to dismiss on the basis that the appeal was
premature because defendant had not been sentenced in Justice
Court. On April 1, 1991, the District Court dismissed and remanded
the case back to Justice Court for sentencing before defendant had
an opportunity to respond with a brief. Defendant appeals from the
order.
I
The first issue is whether the District Court had subject
matter jurisdiction over a D.U.I. case when the notice of appeal
was filed prior to the Justice Court rendering sentencing and final
judgment .
Defendant contends that the appeal was improperly dismissed
because notice of appeal was properly filed within the time
parameters set by § 46-17-311(2), MCA (1989). Defendant argues
that if she waited 21 days after the Justice Court orally
pronounced her guilty she would have run the risk of being time
barred from appealing.
Section 46-17-311, MCA (1989), provides that a party who
appeals from Justice Court to District Court must give written
notice of its intention to appeal within ten days after judgment.
3
In State v. Mortenson (1978), 175 Mont. 403, 404, 574 P.2d 581,
582, we held that "the statutory ten day period for filing a notice
of appeal runs from the date of oral pronouncement of judgment in
open court." We have held that a prerequisite for an appeal from
Justice Court to District Court is the imposition of sentence and
final judgment. State v. Hegeman (1991), 248 Mont. 49, 52, 808
P.2d 509, 511. Section 46-1-201(5), MCA (1989), defines judgment
as meaning "an adjudication by the court that the defendant is
guilty or not guilty, and if the adjudication is that the defendant
is guilty, it includes the sentence pronounced by the court."
Final judgment in this case had not been rendered. The
Justice Court orally pronounced defendant guilty and ordered her to
obtain an alcohol evaluation at her own expense. The Justice Court
allowed her 21 days to obtain the evaluation before sentencing the
defendant. Defendant filed notice of appeal prior to sentencing
and final judgment by the Justice Court. An appeal cannot be
utilized by the defendant until judgment has been fully rendered.
This includes the conviction and sentencing of the defendant by the
Justice Court. We agree with the District Judge that the District
Court lacked subject matter jurisdiction in this case.
I1
The second issue is whether the District Court erred when it
dismissed defendant's case and remanded it back to Justice Court
for sentencing without allowing defendant the opportunity to
4
respond to the State's motion to dismiss as provided by Rule 2 of
the Uniform District Court Rules and Rule 6, M.R.CiV.P.
Defendant argues that the District Court lacked authority to
remand the case to Justice Court pursuant to our holding in City of
Hardin v. Myers (1981), 194 Mont. 248, 249, 633 P.2d 677, 678, and
that defense counsel did not have an opportunity to file an
opposition brief to the State's motion to dismiss. We stress the
point that the District Court lacked subject matter jurisdiction to
even hear this case because the Justice Court had not rendered
sentencing and final judgment upon the defendant. We hold that
under the facts and circumstances of this case the District Court
properly dismissed and remanded the case to Justice Court for
sentencing.
We affirm.
Justice
We concur:
5
March 19, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Randy S . Laedeke
Laedeke Law Office
P.O. Box 2216
Billings, MT 59103
Hon. Marc Racicot, Attorney General
Justice Bldg.
Helena, MT 56920
Dennis Paxinos, County Attorney
Marcia Good Sept, Deputy
P.O. Box 35025
Billings, MT 59107
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Depu
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