STATE v MORTENSON

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No. 13898 IN THE SUFREME COURT OF THE STATE OF MONTANA 1978 STATE OF MONTANA, Plaintiff and Respondent, ROGER MORTENSON, Defendant and Appellant. Appeal from: District Court of the Twelfth Judicial District, Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellant: William E. Gilbert, Bozeman, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Ronald W. Smith, County Attorney, Havre, Montana Submitted on briefs. Submitted: Filed: .j/?p; . January 5, 1978 M r . J u s t i c e John Conway Harrison delivered the Opinion of the Court : This i s an appeal from an order of the D i s t r i c t Court, H i l l County, dismissing defendant's appeal from a j u s t i c e court conviction f o r f a i l u r e t o give n o t i c e of appeal within the prescribed s t a t u t o r y period. O December 23, 1975, a complaint was f i l e d i n j u s t i c e n c o u r t , H i l l County, charging defendant with a v i o l a t i o n of privacy i n communications, a misdemeanor, under s e c t i o n 94-8-114, R.C.M. 1947. Defendant was a r r e s t e d and arraigned on December 24, 1975. T r i a l i n j u s t i c e court was held April 7 , 1977, and defendant was found g u i l t y . Time f o r sentencing was waived by the defendant, and o r a l judgment was imposed i n open c o u r t , i n the presence of counsel, on April 7. The judgment was reduced t o writing on April 12, 1977. Counsel f o r defendant executed a w r i t t e n n o t i c e of appeal, dated April 21, and i t was mailed t o the H i l l County J u s t i c e Court on April 23, and received by the court on April 27. The presiding j u s t i c e of the peace t h e r e a f t e r s e t an appeal bond, which was furnished by defendant. The D i s t r i c t Court dismissed defendant's appeal s t a t i n g : ''(2) Whether t h e appeal time i s computed from the d a t e of t h e o r a l judgment on April 7 , 1977, o r from the d a t e of t h e w r i t t e n judgment of April 12, 1977, the n o t i c e of appeal was not given within ' t e n days a f t e r judgment' a s required by R.C.M. 95-2009." The c o n t r o l l i n g i s s u e i s whether t h e time f o r appeal from a j u s t i c e court conviction runs from the d a t e of verbal pronouncement of judgment i n open c o u r t , o r the date the judgment i s executed by the j u s t i c e of the peace and received by defendant. Defendant c e n t r a l l y contends t h e time f o r appeal runs from t h e d a t e the judgment i s executed by t h e j u s t i c e of t h e peace and received by defendant, u n t i l t h e n o t i c e of appeal i s mailed by defendant. Given such parameters, defendant maintains h i s n o t i c e of appeal was f i l e d w i t h i n t h e t e n day period prescribed by s t a t u t e . W cannot agree. e The time allowed f o r appeal from a j u s t i c e c o u r t convict i o n i s s e t i n s e c t i o n 95-2009, R.C.M. 1947: "(b) The defendant may appeal t o t h e d i s t r i c t c o u r t by giving w r i t t e n n o t i c e of h i s i n t e n t i o n t o appeal w i t h i n t e n (10) days a f t e r judgment." Section 95-2007(b), R.C.M. 1947, i n d i c a t e s judgment upon a p l e a o r j u d i c i a l determination of g u i l t i s rendered i n open court. There i s no requirement i n t h e Montana Code of Criminal Procedure, s e c t i o n s 95-101 e t s e q . , R.C.M. 1947, t h a t a j u s t i c e of t h e peace reduce t o w r i t i n g o r a l judgments, n o r i s i t required t h a t a defendant be served a copy of a w r i t t e n judgment. Therefore, t h e s t a t u t o r y t e n day period f o r f i l i n g a n o t i c e of appeal runs from t h e d a t e of o r a l pronouncement of judgment i n open c o u r t . W f u r t h e r hold t h e w r i t t e n n o t i c e of appeal must be e f i l e d with t h e j u s t i c e c o u r t w i t h i n t h e t e n day period. In t h e absence of a s p e c i f i c provision regarding j u s t i c e c o u r t s t h i s language o f s e c t i o n 95-2413, R.C.M. 1947, i s a p p l i c a b l e : " ( a ) F i l i n g . Papers required o r permitted t o be f i l e d must be placed i n t h e custody of t h e c l e r k within t h e time f i x e d f o r f i l i n g . F i l i n g may be accomplished by mail addressed t o t h e c l e r k , b u t f i l i n g s h a l l n o t be timely u n l e s s t h e papers a r e a c t u a l l y received w i t h i n *'I (Emphasis added.) t h e time fixed f o r f i l i n g . (19741, See: S t a t e v. ~ u s h , / 1 6 4Mont. 81, 82, 518 P.2d 1406; S t a t e ** v. Bergum, (1974), 164 Mont. 155, 156, 520 P.2d 653. Defendant, in the instant case, was adjudged guilty in open court on April 7, 1977. His notice of appeal was received by the justice court on April 27, 1977, well beyond the ten day statutory filing period. Measured by the standards outlined herein, we find the District Court properly dismissed defendant's appeal for noncompliance with the provisions of section 95-2009(b). Further, even under defendant's argument the notice of appeal was not timely. The order of the District Court dismissing defendant's appeal is affirmed.

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