NO. 93-341
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
VIRGINIA RICKETT,
APPEAL FROM: District Court of the Thirteenth ~udicialDistrict,
Xn and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Christopher P. Thimsen, ~illings,Montana
For Respondent:
Mary Jane McCalla, Assistant City Attorney,
Billings, Montana
Submitted on Briefs: November 5, 1993
Decided: December 7 , 1 9 9 3
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
On January 14, 1993, the Billings City Court convicted
Virginia Rickett (Rickett) of the offense of prostitution, imposing
a six month term of incarceration in the city jail and a $500 fine.
She filed a notice of appeal and the record was transmitted to the
Thirteenth Judicial District Court, Yellowstone County.
Rickett, who was unrepresented by counsel, did not appear for
an omnibus hearing scheduled by the District Court. Based on her
failure to appear, the court determined that Rickett had not
properly perfected her appeal and had waived her appeal; it deemed
the appeal to be without merit. The District Court remanded the
case to City Court for imposition and/or execution of that court's
sentence.
On appeal, Rickett challenges the District Court's remand of
her appeal. We conclude that the District Court exceeded its
authority and, therefore, reverse its order remanding her appeal to
City Court.
Rickett asserts that the District Court was required to hold
a trial de novo upon the filing of her appeal pursuant to 5 46-17-
311, MCA. On that basis, she contends that court was precluded
from ordering the execution of a previously-imposed sentence. She
also argues that the District Court exceeded its authority by
exercising appellate jurisdiction, relying on City of Hardin v.
Myers (1981), 194 Mont. 248, 633 P.2d 677.
The City of Billings (the City) concedes that Rickett
perfected her appeal under 9 46-17-311, MCA. It contends, however,
2
that the District Court had the jurisdiction to remand the case
under its authority to control litigants and dismiss cases sua
citing 55 3-1-111, 3-1-113, 25-33-304, and 46-13-401, MCA.
s~onte,
We disagree.
Upon the perfection of Rickett's appeal, the District Court
must try the case anew pursuant to 5 46-17-311(1), MCA. We have
determined that 5 46-17-311(1), MCA, provides a trial de novo as
the exclusive remedy for review of justice or city court
proceedings. State v. Kesler (1987), 228 Mont. 242, 245, 741 P.2d
791, 793: Forsythe v. Wenholz (1976), 170 Mont. 496, 499, 554 P.2d
1333, 1335.
Black's Law Dictionary (4th ed. 1968) 1677, defines trial de
novo as "[a] new trial or retrial had in an appellate court in
which the whole case is gone into as if no trial whatever had been
had in the court below." Therefore, a district court must conduct
the proceedings before it as if the case had originated in that
court, following all statutes and rules governing district court
proceedings.
Section 46-16-122(2), MCA, governs a district court's response
to the failure of a defendant who is unrepresented by counsel to
appear during the course of a misdemeanor trial. That statute
authorizes the court to do one or more of the following: 1) order
a continuance; 2) order bail forfeited: 3) issue an arrest warrant;
or 4) proceed with the trial after finding that the defendant had
knowledge of the trial date and is voluntarily absent. The
District Court's options, in response to Rickett's failure to
appear at the omnibus hearing, were limited to those set forth in
5 46-16-122(2), MCA. It had no authority to remand her appeal to
City Court under that statute.
Furthermore, the statutes cited by the City do not provide a
basis for the action taken by the District Court. Section 3-1-111,
MCA, sets forth a number of powers vested in the district court
respecting the conduct of its business, none of which include the
remand of an appeal from city court. While 5 3-1-113, MCA,
authorizes a district court to use the means necessary for the
exercise of jurisdiction conferred by the constitution or statute,
it does not grant a district court blanket authority to respond to
a defendant's failure to appear when the range of responses is
specifically circumscribed by statute. A district court is allowed
to dismiss the appeal of a civil case under 25-33-304, MCA.
However, the statute does not authorize the remand of a criminal
case such as the one before us. Finally, remand is not authorized
by § 46-13-401, MCA, which allows a district court to dismiss a
complaint, information, or indictment. We conclude that the
District Court was without authority to remand Rickett's appeal to
City Court.
Our conclusion that the District Court overstepped its
authority is in accord with City of Hardin v Myers (1981), 194
.
Mont. 248, 633 P.2d 677. There, we stated that 5 46-17-311, MCA,
vested a district court with jurisdiction for a trial de novo but
not appellate review. Citv of Hardin, 633 P.2d at 677. On that
basis, we determined that the district court exceeded its authority
by remanding a case to city court to allow for the correction of a
faulty complaint and a new trial. Citv of Hardin, 633 P.2d at 678.
We hold that the District Court was without authority to
remand Rickett's case for imposition and/or execution of the
sentence imposed in City Court. Therefore, we vacate the order
remanding Rickett's case and remand to the District Court for
further proceedings.
Reversed.
We Concur: /
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