NO. 95-059
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
GREG PRICE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert G. McCarthy; Hennessey, Joyce, McCarthy
& Wing, Butte, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Patricia
J. Jordan, Ass't Attorney General, Helena, Montana
Submitted on Briefs: May 25, 1995
Decided: June 20, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Greg Price (Price) appeals from an order of the Eighth
Judicial District Court, Cascade County, dismissing his appeal from
City Court. We reverse and remand.
On July 29, 1994, a jury in the City Court of Great Falls
convicted Greg Price of the offenses of driving under the influence
of alcohol and resisting arrest. He was sentenced on the same
date.
Price filed a notice of appeal in City Court on August 12,
1994, and the file subsequently was transferred to the District
Court. The City of Great Falls moved for dismissal of the notice
of appeal on the basis that the appeal was not timely filed and,
absent a timely appeal, the District Court lacked jurisdiction over
the case. After briefing by the parties, the District Court
entered its order dismissing the appeal. Price appeals from that
order.
Did the District Court err in dismissing Price's appeal?
Section 46-17-311(2), MCA, requires that appeals from a city
court to a district court for a trial de nova be undertaken "by
filing written notice of intention to appeal within 10 days after
a judgment is rendered following trial." Price's notice of appeal
was filed 14 days after he was convicted and sentenced.
The District Court relied on State v. Hartford (1987), 228
Mont. 254, 741 P.2d 1337, in dismissing Price's appeal. In
Hartford, we stated that the right to appeal from a court of
limited jurisdiction to a district court is purely statutory and
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that a district court does not acquire jurisdiction absent timely
compliance with 5 46-17-311, MCA. Hartford, 741 P.Zd at 1338.
There, the notice of appeal was not given within the statutory lo-
day period and, as a result, we affirmed the district court's
dismissal of the appeal. Hartford, 741 P.2d at 1338. We
reaffirmed the Hartford approach in State v. Arthur (1988), 234
Mont. 75, 761 P.2d 806.
Subsequent to the court's order dismissing Price's appeal,
however, we decided State v. Schindler (Mont. 1994), 886 P.2d 978,
51 St.Rep. 1421. Schindler is controlling and dispositive here.
The issue in Schindler was whether the notice of appeal from
justice court to district court was timely. We observed that both
the Montana Justice and City Court Rules of Civil Procedure (Rules
of Civil Procedure) and the Montana Uniform Rules for Justice and
City Courts (Uniform Rules) had been adopted since Arthur.
Schindler, 886 P.2d at 979. Rule 21 of the Uniform Rules provides
that time is to be computed under Rule 6 of the Rules of Civil
Procedure; Rule 6 provides that intermediate weekend days and legal
holidays are excluded in computing time periods prescribed by
statute. Schindler, 886 P.2d at 979-980. Applying those Rules to
Schindler's notice of appeal, we concluded that the notice of
appeal was timely filed. Schindler, 886 P.2d at 980.
We reach the same result here. Price had 10 days after July
29, 1994, within which to file his notice of appeal pursuant to §
46-17-311(2), MCA. Excluding four intervening weekend days, the
tenth day was August 12, 1994. That is the day on which Price
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filed his notice of appeal.
We conclude that Price's notice of appeal was timely filed.
We hold, therefore, that the District Court erred in dismissing the
appeal.
Reversed and remanded for further proceedings.
We concur:
Chief Justice
Justices /
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