No. 94-241
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
KATHLEEN FAY SCHINDLER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gregory W. Duncan; Harrison, Loendorf & Poston,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Patricia
J. Jordan, Ass't Attorney General, Helena, Montana
Submitted on Briefs: October 20, 1994
Decided: December 20, 1994
Filed:
UK 20 1994
Justice John Conway Harrison delivered the Opinion of the Court.
Kathleen Fay Schindler (Schindler) appeals the Fifth Judicial
District Court's dismissal of her appeal from Justice Court and the
court's denial of her motion for reconsideration. We reverse and
remand this matter to the District Court.
On March 4, 1994, Schindler was found guilty in Justice Court
of the misdemeanor offenses of assault and criminal mischief. The
Justice Court entered what it considered a final judgment and
adjourned.
On March 14, 1994, Schindler's counsel sent, via facsimile
(fax), a Notice of Appeal to the Sheriff's office. The Sheriff's
office was authorized to accept faxes for the court. Schindler
alleges the fax was sent at 4:54 p.m. and completed transmission at
4:56 p.m. Respondent State of Montana (State) alleges the fax was
received at 5:Ol p.m.
On April 8, 1994, the State filed a motion to dismiss,
alleging that the appeal was not filed on time. On April 27, 1994,
the District Court dismissed the appeal, stating only that the
notice of appeal was untimely. Schindler filed a motion for
reconsideration which was denied on May 11, 1994. This appeal
followed.
The sole issue on appeal is whether Schindler timely filed the
notice of appeal from Justice Court to District Court.
The State primarily relies on § 46-17-311, MCA, to determine
that Schindler's appeal was not filed on time. Section 46-17-311,
MCA, provides in part:
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(1) Except for cases in which legal issues are
preserved for appeal pursuant to 46-12-204, all cases on
appeal from the justice's or city court must be tried
anew in the district court and may be tried before a jury
of six selected in the same manner as for other criminal
cases. . . .
(2) The defendant may appeal to the district court
by filing written notice of intention to appeal within 10
days after a judgment is rendered following trial. . .
The State relies on State v. Arthur (19881, 234 Mont. 75, 761
P.2d 806, for its contention that Schindler's notice of appeal was
not filed on time. In Arthur, the defendant's conviction took
place on November 18 and the ten-day time limit for notice of
appeal fell on a Saturday. Arthur, 761 P.2d at 807. As a result,
we applied 5 l-l-307, MCA, and held that the defendant had until
Monday, November 30 to file. The notice was mailed on November 30
and received on December 1. Arthur, 761 P.2d at 807. We concluded
that a written notice of appeal had to be physically filed within
10 days after judgment and that the defendant's mailed notice of
the appeal was not filed on time. Arthur, 761 P.2d at 809; see 5
46-17-311, MCA (1987). Our 1988 holding in Arthur, however, is not
applicable to the present case because of the change in the method
for computing the time limit for filing notices of appeal from
Justice and City Courts.
On February 9, 1990, we adopted the Montana Justice and City
Court Rules of Civil Procedure. Our Montana Justice and City Court
Rules of Civil Procedure appear in Volume 4 of the Montana Code
Annotated, commencing at page 1179. Rule 6 provides in part:
A. COMPUTATION. When the computation of any period
of time prescribed or allowed by these rules is by order
of a court or by any applicable statute, the day of the
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act, event, or default.after which the designated period
of time begins to run may not be included. The last day
of the period so computed must be included unless it is
a Saturday, Sunday, or legal holiday, in which event the
period runs until the end of the next day that is not a
Saturday, Sunday, or legal holiday.
B. EXTENSION. When by these rules, by a notice
given under these rules, or by order of a court an act is
required or allowed to be done at or within a specified
time, the judge for cause shown may extend the period if
a motion is made before the expiration of the period
originally prescribed or extended by previous permission
of the court or after expiration of the specified period
if failure to act was the result of excusable neglect.
C. ADDITIONAL TIME AFTER SERVICE BY MAIL. Whenever
a party has the right or is required to do an act or take
a proceeding within a prescribed period after service of
a notice or other paper and the notice or other paper is
served by mail, 3 days must be added to the prescribed
period.
The foregoing rule, however, is not determinative.
In addition to the foregoing Rules of Civil Procedure, this
Court adopted the Montana Uniform Rules for Justice and City Courts
(Uniform Rules) which became effective June 1, 1993. These rules
appear in Volume 4 of the Montana Code Annotated, commencing at
page 1198. Rule 1 provides as follows:
Rule 1. Scope of Rules.
(a) These rules, together with the Montana
Justice and City Court Rules of Civil Procedure,
govern the practice in all justice and city courts
of the state of Montana.
Further, Rule 21, establishes the following time computation:
Rule 21. Time computation
(a) Time shall be computed as provided under
Rule 6 of the Montana Justice and City Court Rules
of Civil Procedure.
(b) When the period of time prescribed or
allowed is ten days or less, intermediate
Saturdays, Sundays, and legal holidays shall
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be excluded.
We hold that Rule 21 of the Uniform Rules applies to the instant
case. Section 46-17-311, MCA, provides ten days to file a notice
of appeal. As a result, intermediate Saturdays, Sundays, and legal
holidays shall be excluded from the time computation.
The Justice Court sentenced Schindler on March 4, 1994.
Therefore, Schindler had until March 18, 1994 to file her notice of
appeal. This is ten days from the fourth, excluding Saturdays and
Sundays. Based on either party's factual contentions, the notice
was filed before March 18th. The parties' arguments about the date
and time the fax was sent, received, or filed are irrelevant.
Therefore, the notice of appeal was filed on time.
Reversed.
We coqcu