State v. Mortenson, 13898
| Decision Date | 26 January 1978 |
| Docket Number | No. 13898,13898 |
| Citation | 574 P.2d 581,175 Mont. 403 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Roger MORTENSON, Defendant and Appellant. |
| Court | Montana Supreme Court |
William E. Gilbert, Bozeman, for appellant.
Michael T. Greely, Atty. Gen., Helena, Ronald W. Smith, County Atty., Havre, for respondent.
This is an appeal from an order of the District Court, Hill County, dismissing defendant's appeal from a justice court conviction for failure to give notice of appeal within the prescribed statutory period.
On December 23, 1975, a complaint was filed in justice court, Hill County, charging defendant with a violation of privacy in communications, a misdemeanor, under section 94-8-114, R.C.M.1947. Defendant was arrested and arraigned on December 24, 1975.
Trial in justice court was held April 7, 1977, and defendant was found guilty. Time for sentencing was waived by the defendant, and oral judgment was imposed in open court, in the presence of counsel, on April 7. The judgment was reduced to writing on April 12, 1977.
Counsel for defendant executed a written notice of appeal, dated April 21, and it was mailed to the Hill County Justice Court on April 23, and received by the court on April 27. The presiding justice of the peace thereafter set an appeal bond, which was furnished by defendant.
The District Court dismissed defendant's appeal stating:
"(2) Whether the appeal time is computed from the date of the oral judgment on April 7, 1977, or from the date of the written judgment of April 12, 1977, the notice of appeal was not given within 'ten days after judgment' as required by R.C.M. 95-2009."
The controlling issue is whether the time for appeal from a justice court conviction runs from the date of verbal pronouncement of judgment in open court, or the date the judgment is executed by the justice of the peace and received by defendant.
Defendant centrally contends the time for appeal runs from the date the judgment is executed by the justice of the peace and received by defendant, until the notice of appeal is mailed by defendant. Given such parameters, defendant maintains his notice of appeal was filed within the ten day period prescribed by statute. We cannot agree.
Section 95-2007(b), R.C.M.1947, indicates judgment upon a plea or judicial determination of guilt is rendered in open court. There is no requirement in the Montana Code of Criminal Procedure, sections 95-101 et seq., R.C.M.1947, that a justice of the peace reduce to writing oral judgments, nor is it required that a defendant be served a copy of a written judgment. Therefore, the statutory ten day period for filing a notice of appeal runs from the date of oral pronouncement of judgment in open court.
We further hold the...
To continue reading
Request your trial
-
State v. Clark
...Justice BRIAN MORRIS joins the Special Concurrence of Justice JAMES C. NELSON. 1. Clark and the State both rely on State v. Mortenson, 175 Mont. 403, 574 P.2d 581 (1978), for the proposition that the period for filing a notice of appeal runs from the date on which the court orally renders j......
-
State v. Rogers
...to the District Court because an appeal is exclusively a statutory right. State v. Province (1987), 735 P.2d 1128; State v. Mortenson (1978), 175 Mont. 403, 574 P.2d 581. (Emphasis Moreover, statutes relating to appeals are mandatory and jurisdictional and prohibitory and jurisdictional in ......
-
State v. Tweedy
...a justice court orally renders judgment in open court, regardless of whether a written judgment is issued. State v. Mortenson (1978), 175 Mont. 403, 404-405, 574 P.2d 581, 582. In Mortenson, the record apparently reflected that the sentence and judgment were, in fact, orally pronounced in o......
-
State v. Crane, 81-306
...rel. Ross v. Mallory (1979), Mont., 601 P.2d 385, 385-386, 36 St.Rep. 1717 (written appeal given to wrong court); State v. Mortenson (1978), 175 Mont. 403, 574 P.2d 581, 582 (no written appeal within ten days of oral judgment); State v. Bush (1974), 164 Mont. 81, 518 P.2d 1406, 1407 (appeal......