State v. Main
| Decision Date | 11 February 1981 |
| Docket Number | No. 80-233,80-233 |
| Citation | 38 St.Rep. 205,623 P.2d 1382,191 Mont. 304 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. James Joseph MAIN, Sr., and Vernie Main, Defendants and Appellants. |
| Court | Montana Supreme Court |
Francis X. Lamebull, Harlem, for defendants and appellants.
Mike Greely, Atty. Gen., Helena, Frank Altman, City Atty., Harlem, for plaintiff and respondent.
Defendants James Joseph Main and Vernie Main were each convicted of one count of disorderly conduct in the City Court of Harlem, Montana. Their appeal to the Twelfth Judicial District Court, Blaine County, was dismissed for failure to cause timely transmission of the record. Mains appeal from the order of dismissal.
Defendants raise the following issues:
1. Were defendants' appeals properly dismissed for failure to cause timely transmission of the city court record?
2. Are defendants entitled to appointed counsel on appeal to the District Court?
During the evening of August 25, 1979, while defendants were patronizing Kennedy's Bar in Harlem, their son arrived and informed them he had been stabbed in the abdomen. Defendants thereupon set out in search of the suspected assailant, apparently intent on exacting revenge. Their quest took them to a Harlem trailer court where they engaged in the conduct which resulted in the charge before us.
Defendants were convicted of disorderly conduct following a jury trial in Harlem City Court on December 14, 1979. On the same date, the court orally imposed judgment and sentence, and made a minute entry setting forth the judgment and sentence. On December 24, 1979, defendants filed notices of appeal from the City Court judgment. Defense counsel apparently requested the City Court to transfer the record to the District Court on January 25, 1980. Documents from the Police Court record were forwarded to the District Court on January 28, 1980, and were received on January 29, 1980, 35 days after the notices of appeal were filed.
On February 11, 1980, the City of Harlem filed motions to dismiss the appeals for failure to transmit the records within the time period allowed in section 46-17-311(3), MCA. On March 17, 1980, the District Court ordered dismissal of defendants' appeals, and ruled the question of appointed counsel moot.
Section 46-17-311, MCA, provides:
Defendants advance four separate arguments which they assert should relieve them from operation of the 30-day statutory time limit.
Defendants first argue that they have yet to be served with written notice of the judgments, and the 30-day limit cannot commence until such notice is received. In State v. Mortenson (1978), 175 Mont. 403, 574 P.2d 581, this Court held the time for filing a notice of appeal runs from the oral pronouncement of judgment in open court. Defendants met their 10-day limit in this regard. We similarly hold here the time allowable for transmission of the record is not dependent upon written judgment where there has been an oral pronouncement of the same in open court.
Defendants next maintain that the time limit should be tolled during any time spent briefing the preliminary matter of eligibility for appointed counsel. We find this argument without merit. Defendants have not noted any authority, nor have we discovered any, which would support their position: To the contrary, however, timely transmission of the record could not in any way have hampered defense counsel's efforts on the preliminary matter; and parts of the record would clearly have been relevant to the District Court's inquiry into the issue. The preliminary inquiry into the defendants' indigence did not act to excuse them from their statutory...
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State v. Sol
...initiated by defendants, such as Speith, 797 P.2d at 221; State v. Hartford (1987), 228 Mont. 254, 741 P.2d 1337; and State v. Main (1981), 191 Mont. 304, 623 P.2d 1382, which lead him to assume that § 46-17-311, MCA (1989), has only been strictly construed against defendants. This is incor......
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State v. Speith
...Mont. at 256, 257, 741 P.2d at 1338. We once again affirm that it is the duty of appellant to perfect the appeal. See State v. Main (1981), 191 Mont. 304, 623 P.2d 1382; State v. Crane (1982), 196 Mont. 305, 639 P.2d 514; City of Billings v. Seiffert (1985), 215 Mont. 381, 697 P.2d As the s......
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State v. Crane, 81-306
...statute provides, and as this Court has strictly construed, it is the defendant's duty to perfect the appeal. State v. Main (1981), Mont., 623 P.2d 1382, 1383-1384, 38 St.Rep. 205 (appeal dismissed because court records were not properly transferred); State ex rel. Ross v. Mallory (1979), M......
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State v. Hartford, 87-228
...necessity of strict compliance with the appeal statute has softened since our decision in Mortenson. Hartford cites State v. Main (Mont.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 re......