NO. 95-560
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID MORA,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carrie L. Garber, Deputy Public Defender, Billings
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Jennifer Anders, Ass't Attorney General,
Helena, Montana
Dennis Paxinos, Yellowstone County Attorney
Margaret R. Gallagher, Deputy County Attorney
Billings, Montana
Submitted on Briefs: June 13, 1996
Decided: August 6, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
David Mora (Moral appeals from an order of the Thirteenth
Judicial District Court, Yellowstone County, dismissing his appeal
from a Justice Court conviction. We reverse and remand.
The sole issue on appeal is whether the District Court erred
in concluding that it did not have jurisdiction over Mora's appeal.
On January 21, 1995, Mora was arrested on a charge of driving
under the influence of alcohol (DUI). Mora appeared before the
Yellowstone County Justice Court on February 6, 1995, and entered
a plea of not guilty. The Justice Court scheduled a nonjury trial
for May 22, 1995. Mora's counsel appeared for the trial on that
date, but Mora did not. The Justice Court denied Morals counsel's
motion for a continuance, proceeded with the bench trial in
absentia, and found Mora guilty of DUI. In an order dated May 30,
1995, the Justice Court reiterated that it had found Mora guilty of
DLJI on May 22, 1995, and ordered that Mora "complete the ACT
program at the Mental Health Center and a pre-sentence chemical
dependency evaluation and return to Court for sentencing on July
12, 1995 . . .m The ACT program is an ,alcohol information course
which persons convicted of DUI are required to attend pursuant to
§ 61-8-714., MCA.
Mora filed a notice of appeal from the Justice Court to the
District Court on the same day the Justice Court entered its order.
The District Court subsequently dismissed Mora's appeal by order
dated June 21, 1995, on the basis that the Justice Court had not
yet sentenced Mora and, therefore, the appeal was premature. The
2
District Court remanded Mora's case to the Justice court for
sentencing.
Mora moved for reconsideration, arguing that the Justice Court
had sentenced him when it ordered that he complete the ACT program
prior to formal sentencing and, therefore, his notice of appeal to
the District Court was not premature. In its order on the motion,
the District Court noted that § 61-8-714(4), MCA (1993), authorizes
a court to order drug or alcohol treatment, as well as the required
information course, for a defendant's first DUI conviction; it
reasoned therefrom that a court must have the ability to order
alcohol information and assessment before formal sentencing for
purposes of determining whether treatment is appropriate. On that
basis, the District Court determined that, in ordering Mora to
complete the ACT program and a presentence chemical dependency
evaluation, the Justice Court did not sentence Mora, but only
required that he provide the information it needed to properly
sentence him in the future. In addition, the court relied on State
v. West (1992), 252 Mont. 83, 826 P.2d 940, in determining that
alcohol counseling should not be considered part of the sentence
when analyzing jurisdictional questions because it is not ordered
for a punitive purpose. After concluding that the Justice Court's
order did not constitute a sentence, the District Court reaffirmed
its earlier order dismissing Morals appeal and remanded the case to
Justice Court for sentencing. Mora appeals.
Did the District Court err in concluding that it did not have
jurisdiction over Mora's appeal?
A defendant in a criminal case may appeal from a justice court
3
to a district court by filing a notice of appeal within 10 days
after the justice court renders a judgment. Section 46-17-311(2),
MCA. A judgment includes the sentence pronounced by the court;
thus, the imposition of a sentence and final judgment is a
prerequisite for an appeal from justice court to district court.
State v. Todd (1993), 262 Mont. 108, 111, 863 P.2d 423, 425
(citations omitted). A notice of appeal which is filed before the
justice court pronounces sentence is premature and does not vest
subject matter jurisdiction in the district court. Todd 863 P.2d
-I
at 425.
Mora contends that the District Court erred when it determined
that the Justice Court did not pronounce sentence by ordering him
to complete the ACT program and receive a presentence chemical
dependency evaluation. He argues that no authority exists for a
two-step sentencing procedure in which a defendant is ordered to
complete an alcohol information course and evaluation and then to
return to court for additional sentencing. Mora asserts that such
a procedure impermissibly circumvents this Court's holding in
Rivera v. Eschler (1989), 235 Mont. 350, 767 P.2d 336.
The State of Montana (State) contends that, although the
holding in Rivera prohibits a justice court from ordering treatment
after a valid sentence has been imposed, the Justice Court in the
present case avoided that result by ordering Mora to get an alcohol
dependency evaluation before formally sentencing him to treatment.
The State asserts that an order to complete a presentence alcohol
dependency evaluation does not impose a sentence and, therefore,
4
the Justice Court retained the ability to later sentence Mora to
follow any treatment recommendations that may be made after he
attends the ACT program.
Section 61-8-714, MCA, is the DUI sentencing statute and the
1993 version of the statute applies to Mora's DUI conviction;
subsections (1) through (3) provide the parameters for jail time
and fines within which a court must sentence a person for first and
subsequent DUI convictions. The portion of the statute at issue
here provides that
[iln addition to the punishment provided in this section,
regardless of disposition, the defendant shall complete
an alcohol information course at an alcohol treatment
program approved by the department of corrections and
human services, which may, in the sentencing court's
discretion and upon recommendation of a certified
chemical dependency counselor, include alcohol or drug
treatment, or both. On conviction of a second or
subsequent offense under this section, in addition to the
punishment provided in this section, regardless of
disposition, the defendant shall complete an alcohol
information c o u r s e which must include alcohol or
drug treatment, or both. The treatment provided to
the defendant at a treatment program must be at a level
appropriate to the defendant's alcohol problem, as
determined by the judge based upon the recommendation
from the certified chemical dependency counselor.
Section 61-E-714(4), MCA (1993). By its clear language, the
statute mandates that, as part of a DUI sentence, the court must
require the defendant to complete an alcohol information course.
On a first DUI conviction, the court may--in its discretion--also
require that alcohol treatment be included in the alcohol
information course, but only if a certified chemical dependency
counselor recommends such treatment. Thus, while the requirement
that the alcohol information course be completed is part of the
5
sentence, a court necessarily must obtain a chemical dependency
evaluation and recommendation prior to sentencing if it is inclined
to consider requiring alcohol treatment as part of the sentence.
Although a presentence evaluation is in the nature of a presentence
investigation which, pursuant to § 46-18-111, MCA, may only be
ordered by a district court, § 61-8-714(4), MCA (1993), clearly
authorizes a court sentencing a defendant convicted of a first
offense DUI to order and obtain a presentence chemical dependency
evaluation.
Here, the Justice Court ordered Mora to 1) complete the ACT
program; 2) complete a presentence chemical dependency evaluation;
and 3) return for sentencing. Under § 61-e-714(4), MCA (1993), the
requirement that Mora complete the alcohol information course
clearly is a sentence.
If the Justice Court desired to consider including alcohol
treatment in Mora's sentence, the statute required it to obtain a
chemical dependency evaluation and recommendation prior to imposing
any part of the sentence, but not concurrently with imposing a
sentence. Indeed, the Justice Court may have attempted to do so
here by requiring Mora to obtain the evaluation and then return for
sentencing. These two steps, without the earlier order sentencing
Mora to complete the alcohol information course, would have enabled
the Justice Court to obtain the desired evaluation and then
determine whether to include alcohol treatment in Mora's sentence.
We conclude, however, that the initial sentence that Mora complete
the course negated any further sentencing authority in the court.
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Rivera does not resolve the precise issue presently before us,
but it clearly supports our conclusion. In Rivers., the defendant
was convicted of DUI and the justice court included in the
defendant's sentence a requirement that she attend a DUI school and
complete "treatment as necessary." Rivera, 767 P.2d at 337. When
the defendant completed the counseling portion of the DUI school,
her counselor recommended that she receive in-patient alcohol
treatment. Rivera, 767 P.2d at 337. The justice court then
modified the defendant's sentence, ordering her to follow the
recommendations of the counselor and adding certain specific
requirements to the sentence. Rivera, 767 P.2d at 337. We held
that 5 61-f-714, MCA, the DUI sentencing statute, contemplated that
all punishment and treatment be contained in the original order.
Rivera, 767 P.2d at 338. Thus, when the justice court's original
order required the defendant to complete DUI school and treatment
as necessary, it imposed a valid sentence and, once that sentence
was imposed, the justice court had no authority to later modify it.
Rivera, 767 P.2d at 338.
Nor does West, on which the District Court relied, support the
State's argument that the Justice Court did not sentence Mora when
it ordered that he complete the ACT program. The defendant in West
argued, in part, that the justice court did not have original
jurisdiction over his case because the sentence for his DUI
conviction included a requirement that he attend an alcohol
treatment program, which program potentially could exceed the one-
year maximum penalty for a misdemeanor offense. -, 826 P.2d at
West
7
946. This Court held that including alcohol treatment in a
defendant's DUI sentence did not increase the offense to a felony,
even though there was no time limit on length of the treatment,
because the purpose of requiring a defendant to attend treatment is
to protect the public from DUI offenders rather than to punish the
defendant. West, 826 P.2d at 946. We also held in WeSt that the
purpose of alcohol treatment is to try to rehabilitate the offender
"in an effort to reduce the number of fatalities related to
West
drinking and driving on Montana's roads and highways." -, 826
P.2d at 946. Nowhere in West did we state or indicate that alcohol
treatment or counseling is not part of a DUI sentence; we simply
held that treatment serves the purpose of rehabilitation rather
than punishment within the sentence. The West holding merely
reiterates Montana's statutorily stated correctional policy, which
is "to protect society by preventing crime through punishment and
rehabilitation of the convicted." See 5 46-18-101(2), MCA. Thus,
the District Court misapplied West in concluding that alcohol
counseling and treatment should not be considered part of the
sentence when determining jurisdictional issues.
The record before us reflects that the Justice Court sentenced
Mora when it ordered him to complete the alcohol information course
which, pursuant to § 61-8-714(4), MCA (1993), is a required part of
DUI sentences. At that point, the Justice Court lost jurisdiction
to later modify that sentence. Rivera, 767 P.2d at 338.
Additionally, once the Justice Court imposed sentence, judgment had
been rendered and the sentence and final judgment which are the
8
prerequisites for an appeal from justice court to district court
had been fulfilled. Todd
- I 863 P.2d at 425. We hold, therefore,
that Mora's notice of appeal from the Justice Court was not
premature and that the District Court erred in concluding that it
did not have jurisdiction over the appeal and in dismissing the
appeal.
Reversed and remanded for further proceedings consistent with
this opinion.
aa Justices