NO. 92-616
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
CITY OF BILLINGS,
Plaintiff and Respondent,
v.
JOHN McCARVEL,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles F. Moses (argue, Law Firm,
Billings, Montana
For Respondent:
Mary Jane McCalla (argued), City Attorney's Office,
City of Billings, Billings, Montana
Submitted: September 3, 1993
Decided: November 18, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The City of Billings filed its complaint in the City Court of
the City of Billings in Yellowstone County on June 21, 1991,
alleging that on that same date defendant John M. McCarvel operated
his motor vehicle while under the influence of alcohol in violation
of 5 61-8-401(a), MCA (1989). Over defendant's objection, the
charge against him was tried before a jury in City Court on
July 10, 1992. The jury returned its verdict, finding defendant
guilty as charged. Defendant appealed his conviction to the
District court for the Thirteenth Judicial District in Yellowstone
County and moved that court to dismiss the charges against him as
a matter of law. The motion was denied. Following denial of that
motion, defendant moved to change his plea from not guilty to
guilty, and with the City's consent pursuant to 5 46-12-204(3),
MCA, reserved his right to appeal from the District Court's denial
of his motion to dismiss. This appeal is Prom that order. We
affirm the order of the District Court.
The issues raised by defendant on appeal are as follows:
1. Did the District Court err when it refused to dismiss the
charge against defendant based on the City Court's denial of his
demand for a nonjury trial?
2. Did the District Court err when it refused to dismiss the
charge against defendant based on the fact that he was charged with
a violation of a state statute, rather than a city ordinance?
3. Did the District Court err when it held that the city
attorney had authority to prosecute defendant in this case?
2
DISCUSSION
The following facts were stipulated to by the parties in the
District Court and provide the factual background for defendant's
appeal :
A complaint was filed against John McCarvel on June 21, 1991,
charging defendant with driving while under the influence of
alcohol, in violation of 5 61-8-401(a) , P C (1989)
lA . The City of
Billings demanded that the issues raised by its complaint be tried
by a jury. Defendant, however, waived his right to trial by jury
and moved to strike the city attorney's jury demand.
The City Court rejected defendant's demand for a nonjury trial
and set this case for trial with a jury on July 10, 1992. Prior to
trial, defendant moved to dismiss the case on the basis that the
City had no authority to charge him with a violation of State law
and that the city attorney had no authority to prosecute him.
A jury trial was held on July 10, 1992, at which time the city
attorney represented the City of Billings, and defendant was
represented by his own counsel. The jury returned a verdict,
finding that defendant was guilty as charged with driving under the
influence of alcohol. The City Court Judge pronounced sentence,
and defendant filed a timely notice of appeal to the District
Court.
There is no stipulation between the parties regarding what
occurred in the District court, and there is very little record.
However, it appears from the District Court record that the
following events transpired in the District Court:
3
After filing his notice of appeal, defendant moved the
District Court to dismiss the charge against him on the basis that
he had been denied equal protection and due process when he was
denied his right to waive a jury trial in the City Court. As
additional bases for his motion, he asserted that the City had no
authority to prosecute him under state law, and that the city
attorney had no authority to prosecute the charges against him.
In response to defendant's motion, the City pointed out that
defendant's appeal to the District Court entitled him to a trial de
novo and that it had no objection to defendant's waiver of trial by
jury in the District Court. It contended that, therefore, the City
Court's failure to grant defendant's waiver of a jury trial was
irrelevant. The City objected to the other bases for defendant's
motion based on their merits.
On November 4, 1992, the District Court denied defendant's
motion to dismiss. Eight days later, defendant filed his waiver of
trial by jury. No jury demand was filed by the City, and there is
no further order from the District Court denying defendant's
request to waive trial by jury.
Instead, the District Court's minute entry dated November 25,
1992, indicates that defendant moved for permission to withdraw his
plea of not guilty and enter a plea of guilty to the charge of
driving under the influence of alcohol. That motion was granted
and defendant's guilty plea was accepted.
On December 11, 1992, an amended judgment was entered which
reflects that defendant's guilty plea was entered pursuant to
4
5 46-12-204(3), MCA, with the consent of the city attorney, so that
defendant reserved his right to appeal from the District Court's
denial of his motion to dismiss the charge against him. It is
clear from the transcript of the hearing at which the change of
plea was accepted that defendant was not appealing from a District
Court denial of his right to waive trial by jury. He intended to
appeal from the District Court's refusal to dismiss the charge
against him. The following dialogue is illustrative:
MS. McCALLA: Yes, your honor. The City has no objection
to the defendant reserving his right to take his pretrial
motions up for appeal.
THE COURT: The court will approve that plea under those
conditions. The specified conditions namely would be the
motion to dismiss filed by the defendant?
MR. MOSES: Well, we're entering a plea of guilty.
THE COURT: I understand. But you're reserving the right
to have a post-judgment ruling upon the pre-judgment
motion?
MR. MOSES: Yes, that is entirely correct. The court is
correct, and that's the position that we take.
THE COURT: And so that the record is clear, as I
understand the statute, the specified motion, the motion
that is being specified is the motion to dismiss filed in
this Court by you on behalf of the defendant?
MR. MOSES: That is true, based upon the fact that we're
pleading guilty.
Did the District Court err when it refused to dismiss the
charge against defendant based on the City Court's denial of his
demand for a nonjury trial?
Prior to October 1, 1991, 5 46-17-201(2), MCA, provided that
in misdemeanor cases "[a] trial by jury may be waived by the
consent of both parties expressed in open court and entered in the
docket." (Emphasis added). Based upon an amendment to that
statute in the 1991 session of the Legislature, the statute now
provides, and provided at the time of defendant's trial in Billings
City Court, as follows: "Upon consent of the defendant, a trial by
jury may be waived." (Emphasis added).
Defendant contends that based on this change, he had a
statutory right to a nonjury trial Ln City Court, and that the City
Judge's refusal to grant a nonjury trial violated his
constitutional rights to equal protection and to due process. The
City, on the other hand, successfully argued that pursuant to
Article 11, Section 26, of the Montana Constitution, a jury trial
could not be waived without its consent. The City Court agreed.
Without reaching the due process and equal protection issues,
we agree that pursuant to 5 46-17-201(2), MCA (as amended in 1991),
defendant had a statutory right to waive trial by jury in the City
court. See State ex rel. Nelson v. Ninth Judicial District Court, supreme Court Cause
No. 92-512, decided November 18, 1993.
However, we do not agree that the District Court erred by
failing to dismiss the charges against defendant after he appealed
to the District Court from the City Court.
Pursuant to 5 25-33-301, MCA, defendant was entitled to a
trial de novo in the District Court. That section provides:
(1) All appeals from justices' or city courts must be
tried anew in the district court on the papers filed in
the justice's or city court unless the court, for good
cause shown and on such terms as may be just, allow other
or amended pleadings to be filed in such action. The
court may order new or amended pleadings to be filed.
Each party has the benefit of all legai objections made
in the justice's or city court.
(2) When the action is tried anew on appeal, the
trial must be conducted in all respects as other trials
in the district court. The provisions of this code as to
trials in the district courts are applicable to trials on
appeal in the district court.
Pursuant to the right provided in 5 46-17-201, MCA, defendant
waived his right to jury trial in the District Court. The City
lodged no objection to that waiver, and made no demand of its own
for trial by jury. There is no indication in the record that the
District Court overruled defendant's waiver of his right to trial
by jury. The only indication is that the District Court refused to
dismiss the charges altogether based on the fact that defendant's
waiver had not been honored in the City Court. We have previously
held that:
The district court does not, on appeal from a justices
court, sit as a court of review, but tries the cause de
rlovo (Code Civ. Proc., sec. 1761; Pen. Code, sec. 2717,
.
Missoula E.Light Co. v. M q u n , 1 3 Mont 394, 3 4 Pac. 488. )
l
After the cause reaches that court, the trial and other
proceedings are the same as in causes originating there,
its jurisdiction depending upon the fact of jurisdiction
by the justice's court of the subject matter and of the
parties. That the justice had jurisdiction of the
offense charged here is clear. (Code Civ. Proc., sec.
6 8 ) ; that it had jurisdiction of the defendant is also
clear, because the record discloses his plea of not
guilty and his presence at trial and judgment. The
defendant, having by his appeal asked for a trial de ?love,
cannot be heard to insist that the district court should
confine its action thereon to a review of errors and
irregularities in the proceedings ofthe justice [court,]
and determine the case accordingly. By taking the
appeal, the irregularities attending the rendition of
judgment were waived. The motion was properly denied.
Stutev. OlBrien (1907), 35 Mont. 482, 491, 90 P. 514, 516-17.
Likewise, in this case, the District Court was not a court of
review, it was an opportunity for defendant to have a trial de novo
without a jury and thereby cure whatever prejudice resulted from
the City Court's refusal to apply the right to waiver provided for
in § 46-17-201, MCA. We hold that the District Court did not err
by refusing to dismiss the charge against defendant based on errors
or irregularities that occurred in the City Court.
11.
Did the District Court err when it refused to dismiss the
charge against defendant based on the fact that he was charged with
a violation of a state statute, rather than a city ordinance?
For his second issue on appeal, defendant contends that when
the City of Billings enacted 5 61-8-401, MCA, which prohibits
operating a motor vehicle under the influence of alcohol, it failed
to adopt the penalty provisions found at 5 61-8-714, MCA, and
therefore, was without authority to prosecute defendant.
The City responds that Article 24.101 of the Billings,
Montana, City Code, provides that:
It is unlawful and punishable as provided in
sections 61-8-714 and 61-8-723 for any person who is
under the influence of:
(a) alcohol to drive or be in actual physical
control of a vehicle upon the ways of this state open to
the public ....
Therefore, the City points out that its ordinance adopting
5 61-8-401, MCA, does in fact provide a penalty provision.
However, more importantly, the City responds that defendant was not
charged under its city ordinance, but instead under the state
statute found at 5 61-8-401(a), MCA. It points out that pursuant
to 5 3-11-302(2), MCA, it was authorized to bring a criminal action
in its name for a violation of state statutory law that occurs
within the Billings city limits. Furthermore, the City points out
that 5 3-11-102, MCA, provides that the City Court has concurrent
jurisdiction with the Justice Court to decide misdemeanor
violations arising under State law when they occur within the City.
We agree.
We conclude that pursuant to the above statutes, the City did
have authority to prosecute defendant and that the District Court
did not err when it refused to dismiss the charge against defendant
based on lack of statutory authority for the charge.
111.
Did the District Court err when it held that the city attorney
had authority to prosecute defendant in this case?
The final basis for defendant's motion to dismiss the charge
against him and for this appeal is his argument that since the
charge against him was based on state law, the city attorney had no
authority to prosecute it. However, as noted above, the City Court
had concurrent jurisdiction to try the charges against defendant,
and the City had authority to bring the charges when the alleged
incident occurred within its city limits.
Section 7-4-4604, MCA, provides that "jilt shall be the duty
of the city attorney to attend before the city court and other
courts of the city and the district court and prosecute on behalf
of the city." Therefore, we hold that the city attorney did have
authority to prosecute defendant based upon the allegation that he
operated a motor vehicle while under the influence of alcohol
within the city limits of the City of Billings. We hold that the
District Court did not err when it refused to dismiss the charge
against defendant based on lack of authority by the city attorney
to prosecute him.
For these reasons, we affirm the District Court's order
denying defendant's motion to dismiss the charge against him, and
affirm the judgment entered in the District Court pursuant to
defendant's guilty plea.
We concur:
November 18, 1993
CERTIFlCATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Charles F. Moses
MOSES LAW FIRM
P.O. Box 2533
Billings, MT 59103-2533
MARY JANE McCALLA
Prosecutor
City of Billings
P.O. Box 1178
Billings, MT 59103
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA