IN THE SUPREME COURT OF THE STATE OF MONTAN
No. 87-228
-
1 1987
STATE OF MONTANA, 1 ---
CLERKOFSUPREME COURt
1 STATE OF MONTANA
Plaintiff/Respondent, 1
1
vs . 1 OPINION AND ORDER
1
WESLEY L. HARTFORD, 1
1
Defendant/Appellant. 1
Wesley L. Hartford was convicted of driving under the
influence of liquor in the Yellowstone County Justice Court.
He attempted to appeal his conviction, but his notice of
appeal to the District Court, Thirteenth Judicial District
Court, Yellowstone County, was not timely filed. The
District Court dismissed his appeal and ordered that Hartford
complete the sentence imposed on him by the Justice of the
Peace Court. Hartford appeals from the order of the District
Court.
Hartford's issues on appeal to this Court are:
1. That his failure to file a timely notice of appeal
from the Justice Court to the Yellowstone County District
Court caused no harm or injury and constituted at the most
"harmless error."
2. That the actions, conduct and tactics of the state
prosecutor as condoned by the Justice Court violated
Hartford's fundamental rights; that because thereof the
District Court should have interceded and its failure to do
so was an abuse of discretion and "plain error."
On October 27, 1986, Wesley Hartford was charged with
driving under the influence of alcohol. His case came on for
trial before the Justice of the Peace for Yellowstone County,
before a jury, which returned a verdict of guilty. On
February 11, 1987, the date of his conviction, the Justice of
the Peace pronounced judgment and sentence consisting of a
$200 fine, 60 days in jail, all suspended, and attendance at
a DUI court school. Hartford's notice of appeal was filed
with the Justice Court on March 4, 1987, and the record of
the Justice Court was forwarded to the clerk of the District
Court by certification on March 6, 1987.
In Montana, a right to appeal from a criminal conviction
from justice court to a district court is purely statutory
and arises from 5 46-17-311, MCA, which provides:
(1) All cases on appeal from Justices' or City
Courts must be tried anew in the District Court
...
(2) A party may appeal to the District Court by
giving written notice of his intention to appeal
within 10 days after judgment, except that the
State may only appeal in the cases provided for in
§ 46-20-103.
In this case, a period of 21 days elapsed from the
judgment to the filing of the notice of appeal. Thus,
Hartford far exceeded the statutory allowance of 10 days for
such notice.
Compliance with the statute is required to perfect an
appeal from a Justice Court to the District Court because an
appeal is exclusively a statutory right. State v. province
,
(Mont. 1987), - P.2d - 44 St.Rep. 775, 776; State v.
Mortenson (1978), 175 Mont. 403, 574 P.2d 581.
Without a timely notice of appeal, the District Court
does not gain jurisdiction to consider an appeal from the
Justice Court. State ex rel. Graveley v. District Court
(1978), 178 Mont. 1, 582 P.2d 775; State v. Frodsham (19611,
139 Mont. 222, 362 P.2d 413.
Hartford contends, however, that our view of the
necessity of strict compliance with the appeal statute has
softened since our decision in Mortenson. Hartford cites
State v. Main (1981), 623 P.2d 1382, 38 St.Rep. 205; and,
State v. Dubray (1982), 201 Mont. 327, 654 P.2d 970. In
Main, the pertinent issue involved transmittal of the record,
not the filing of a notice of appeal. Likewise, Dubray did
not involve an untimely notice of appeal but rather the fact
that Dubray had done everything possible to transmit the
Justice Court record to the trial court. Dubray had
fulfilled all of the criteria mandated in § 46-17-311, MCA.
201 Mont. at 331, 654 P.2d at 972.
In State v. Tecca (1986), 713 P.2d 541, 43 St.Rep. 180,
Tecca filed a notice of appeal in the City Court which
improperly stated that the appeal would be to the Justice
Court rather than the District Court. There we granted 10
days to Tecca in which he could file a corrected notice. He
had, however, filed a timely notice with the City Court.
The only authority giving a party a right to appeal from
a criminal conviction in a justice court to a district court
in Montana is 46-17-311, MCA. Unless a party has made
timely compliance with that statute, the District Court does
not acquire jurisdiction of the appeal. In this case,
therefore, the District Court had no other course but to
dismiss the appeal.
Hartford contends further, however, that the actions,
conduct and tactics of the state prosecutor in the Justice
Court violated his fundamental rights, which the District
Court, in the interests of justice, should have recognized
and corrected; and that its failure to do so constituted an
abuse of discretion and "plain error."
This contention calls for the impossible on the part of
the District Court. A Justice of the Peace Court in Montana
is not a court of record, and no transcript of the
proceedings is available for review by the District Court or
this Court for that matter. Hartford's remedy lay in his
right to appeal to the District Court where, if Hartford had
timely appealed, he would be entitled to try his cause anew,
with a jury, if he wished. Section 43-17-311, MCA. His - de
novo trial in the District Court would automatically erase
any imperfections that may have occurred in the Justice Court
trial. Again, his right to a trial - -de novo in the District
Court depends upon a timely notice of appeal from the Justice
Court.
We hold that the District Court properly dismissed
Hartford's attempted appeal from his criminal conviction in
the Justice of the Peace Court.
Accordingly, this appeal is hereby dismissed. Let
remitittur issue forthwith.