State v. Gissel

• Decision Date: 10 August 1983
• Docket Number: No. 13921,13921
• Citation: 105 Idaho 287,668 P.2d 1018
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Lester GISSEL, Conrad Gissel and Dave Lewis, Defendants-Respondents.
• Court: Idaho Court of Appeals

Page 1018

668 P.2d 1018

105 Idaho 287

STATE of Idaho, Plaintiff-Appellant, v. Lester GISSEL, Conrad Gissel and Dave Lewis, Defendants-Respondents.

No. 13921.

Court of Appeals of Idaho.

Aug. 10, 1983.

Petition for Review Denied Oct. 5, 1983.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-appellant.

Thomas A. Mitchell, Coeur d' Alene, for defendants-respondents.

This Opinion Supersedes the Court's Prior Opinion Issued March 8, 1983, which is Withdrawn.

WALTERS, Chief Judge.

This is an appeal by the state from an order of the district court reversing judgments of conviction for criminal trespass, entered upon jury verdicts in the magistrate division. On appeal from the magistrate court, the district court held the evidence insufficient to show malice, as required by the trespass statute.

The state contends the district court's order must be reversed for two reasons. First, the state asserts the district court was without jurisdiction to consider the appeal from the magistrate's court because the notices of appeal from the magistrate division were prematurely filed. Second, the state argues that if the district court had appellate jurisdiction, it erred by holding the evidence insufficient.

In an earlier opinion in this case we agreed with the state on its first point and we held that the district court was without jurisdiction to hear the appeal from the magistrate's division. We did not address the appeal on its merits.

Having been requested, by a petition for rehearing, to further review the matter, however, we now hold that the district court was vested with jurisdiction; and we therefore have withdrawn our earlier opinion. Addressing the merits, we further hold the district court erred in setting aside the jury's verdicts and in reversing the convictions.

I. Proceedings in Magistrate Division.

Lester Gissel, Conrad Gissel and Dave Lewis were charged with misdemeanor offenses of trespass. The charges arose from alleged harvesting and removal of "wild rice" from property managed by the Idaho Fish and Game Department. The defendants were tried jointly before a jury; and verdicts of guilty were returned on November 20, 1979, against all three defendants. When the verdicts were returned, the magistrate announced in open court that "it is the judgment of the court that the defendants are guilty." The magistrate continued the matter to November 29 for sentencing.

The defendants filed motions for new trial. These motions were heard and denied by the magistrate in open court on November 29. The magistrate then proceeded to sentence the defendants upon the trespass offenses. Each defendant was fined $300 plus $10 in court costs. At the conclusion of the sentencing proceeding, the defendants filed written notices of appeal to the district court. The notices stated that the defendants were appealing from "that certain judgment of conviction entered herein on or about the 20th day of November, 1979." However, it was not until December 3, 1979, that the magistrate signed written judgments of conviction, reciting the adjudications of guilt and the fines imposed.

II. Jurisdiction of District Court.

We first address the effect of filing the notices of appeal before the judgments were signed by the magistrate and entered by the clerk. There appear to be two lines of authority on this issue; and both depend largely upon the appellate rules found in the respective jurisdictions.

One line of authority holds that where a notice of appeal is filed prematurely, i.e., after oral pronouncement of a judgment but before a written judgment is filed, the appeal is not subject to dismissal. Rather, the notice remains in a "state of limbo" until the judgment is filed. Under this view, when the written judgment subsequently is entered the notice of appeal "matures" and vests jurisdiction in the appellate court. See e.g., United States v. Moore, 616 F.2d 1030 (7th Cir.1980); United States v. Thoreen, 653 F.2d 1332 (9th Cir.1981); Williams v. State, 324 So.2d 74 (Fla.1975); Cunningham v. State, 232 Ga. 416, 207 S.E.2d 48 (1974); People v. Allen, 71 Ill.2d 378, 16 Ill.Dec. 941, 375 N.E.2d 1283 (1978); State v. Willette, 402 A.2d 476 (Me.1979); State v. Wilke, 560 S.W.2d 601 (Mo.Ct.App.1978); State v. Tripodo, 50 Ohio St.2d 124, 363 N.E.2d 719 (1977); State v. Garvey, 283 N.W.2d 153 (N.D.1979); Mayfield v. State, 627 S.W.2d 474 (Tex.App. 13 Dist.1981).

The other line of authority holds that, in the absence of an express statute or rule, no appeal will lie from anything other than a formal written order or judgment signed by the judge and filed in the case or entered upon the records of the court and signed by the judge thereof. See State v. Morris, 69 N.M. 89, 364 P.2d 348 (1961), citing State v. McClain, 186 Tenn. 401, 210 S.W.2d 680 (1948) and State v. Thorne, 39 Wash.2d 63, 234 P.2d 528 (1951). See also United States v. Mathews, 462 F.2d 182 (3rd Cir.1972); State v. Johnson, 18 Ariz.App. 474, 503 P.2d 829 (1973); People v. Burns, 152 Cal.App.2d 329, 314 P.2d 79 (1957); People v. Bowman, 132 Cal.App.Supp.2d 915, 282 P.2d 1042 (1955); State v. Bulgo, 45 Haw. 501, 370 P.2d 480 (Hawaii 1962); People v. Boston, 27 Ill.App.3d 246, 327 N.E.2d 40 (1975), but compare People v. Allen, 71 Ill.2d 378, 16 Ill.Dec. 941, 375 N.E.2d 1283 (1978); State v. Hendel, 468 S.W.2d 664 (Mo.Ct.App.1971), but compare, State v. Wilke, 560 S.W.2d 601 (Mo.Ct.App.1978); State v. Gonzales, 79 N.M. 414, 444 P.2d 599 (Ct.App.1968); State v. Phillips, 78 N.M. 405, 432 P.2d 116 (Ct.App.1967); Allgood v. State, 78 Nev. 326, 372 P.2d 466 (1962); Gordon v. State, 627 S.W.2d 708 (Tex.Crim.App.1982), but compare Mayfield v. State, 627 S.W.2d 474 (Tex.App. 13 Dist.1981); Jackson v. State, 547 P.2d 1203 (Wyo.1976). Under this latter view, a premature notice of appeal, filed before the subsequent entry of a formal written order or judgment, is ineffective to vest the appellate court with jurisdiction, and the appeal must be dismissed.

Prior case law in Idaho supports the proposition that a premature notice of appeal is a nullity and does not vest jurisdiction in the appellate court, notwithstanding a subsequently entered written judgment. In State v. Barnard, 13 Idaho 439, 90 P. 1 (1907) our Supreme Court dismissed an appeal from the district court because no judgment yet had been entered by the district court from which an appeal could be taken. In State v. Mason, 102 Idaho 866, 643 P.2d 78 (1982), a decision of the district court, which had been rendered on appeal from the magistrate division, was vacated by our Supreme Court because the judgment of the magistrate had not been included in the record on appeal. The Court held that, without such a judgment, the appellate jurisdiction of the district court was not established.

Numerous civil cases in Idaho hold that a premature notice of appeal is ineffective to vest jurisdiction on appeal. See Kraft v. State, 99 Idaho 214, 579 P.2d 1197 (1978) (notice of appeal filed before written findings of fact, conclusions of law or judgment was entered; appeal dismissed as premature); Hamblen v. Goff, 90 Idaho 180, 409 P.2d 429 (1965) (written judgment filed subsequent to notice of appeal; appeal dismissed for lack of appellate jurisdiction); Heidemann v. Krueger, 66 Idaho 612, 164 P.2d 591 (1945) (order of dismissal of appeal by district court from probate court affirmed, where judgment of probate court was entered in the docket subsequent to the notice of appeal to district court); Haddock v. Jackson, 51 Idaho 560, 8 P.2d 279 (1932) (cause remanded to district court with instructions to dismiss appeal from probate court because notice of appeal to district court was filed before written judgment had been entered in probate court docket); First National Bank of Pocatello v. Poling, 42 Idaho 636, 248 P. 19 (1926) (appeal from oral decision dismissed, in absence of judgment, order or decree entered in permanent form in the record); Dalton v. Abercrombie, 35 Idaho 290, 206 P. 1051 (1922) (order of dismissal by district court, of appeal taken from justice of peace court, affirmed, where notice of appeal to district court was filed before a formal judgment was entered on the docket of the justice's court); and Goade v. Gossett, 35 Idaho 84, 204 P. 670 (1922) (appeal from order denying new trial dismissed where notice of appeal was filed prior to entry of the written order denying motion for new trial). Most of these cases were decided when the courts below the district court level in Idaho were not courts of record. No record was required to be maintained of oral rulings, pronouncements or decisions made by such courts. With the advent of the magistrate division system, however, those courts became courts of record. Electronic recordings and minute records of proceedings in those courts are now maintained, thereby preserving oral rulings of the lower courts. Nevertheless, in our first opinion in the present case, we deemed ourselves constrained to follow the pattern of Idaho authority, holding a premature appeal to be a nullity.

However, while the petition for rehearing was pending in this case, our Supreme Court amended Idaho Appellate Rule 17, effective July 1, 1983. The amendment, 17(e)(2), provides:

Premature Filing of Notice of Appeal.

A notice of appeal filed from an appealable judgment, order or decree before formal written entry of such document shall become valid upon the filing and the placing the stamp of the clerk of the court on such appealable judgment, order or decree, without refiling the notice of appeal.

This amendment clearly falls in line with the authorities from other jurisdictions which recognize that a premature notice of appeal--filed after pronouncement of an otherwise appealable decision but before entry of a written order, decree or judgment--is not a nullity but is held in abeyance and matures upon filing by the clerk of a formal...