713 P.2d 541 | Mont. | 1986
The STATE of Montana, Plaintiff and Respondent,
v.
Charles TECCA, III, Defendant and Appellant.
Supreme Court of Montana.
*542 Knuchel & McGregor, Karl Knuchel, Livingston, for defendant and appellant.
Mike Greely, Atty. Gen., Joe Roberts, Asst. Atty. Gen., Helena, Robert Jovick, City Atty., Livingston, for plaintiff and respondent.
MORRISON, Justice.
Defendant, Charles Tecca III, appeals the August 13, 1985, order of the Sixth Judicial District Court dismissing his appeal to that court and remanding his appeal bond. We reverse.
Defendant was convicted of three traffic offenses in Livingston City Court on July 17, 1985. On July 24, 1985, judgment and sentence were orally pronounced. Defendant's attorney filed a notice of appeal in City Court on July 29, 1985. That notice specified that the appeal would be "to the Justice Court of the County of Park, State of Montana, before Deanna Egeland, Justice of the Peace." The appeal should have been to District Court. On August 7, 1985, eleven "working" days after judgment was issued, a correct notice of appeal was filed. Section 46-17-311(2), MCA, requires that a notice of intent to appeal from a judgment of a city or justice court be filed within ten days of the judgment. Therefore, the trial judge dismissed the appeal for failure to file a timely notice of appeal.
We agree with the trial judge that the August 7, 1985, notice of appeal was not timely. We have consistently given a strict construction to § 46-17-311, MCA, and will continue to do so.
Our resolution of this appeal rests on the original notice of appeal. It was timely filed in the proper court. Therefore, the City Court had actual, timely notice of defendant's intent to appeal. Unfortunately, that notice of appeal was defective in that it specified the wrong court as the court of appeal. In a similar case, Adair v. Lake County Justice Court (Mont. 1984), 692 P.2d 13, 41 St.Rep. 2241, the notice of appeal specified that appeal would be to the Montana Supreme Court. Noting that proper appeal should be to the District Court, we granted ten days from the date of remittitur to file a statutorily correct notice of appeal. The same remedy should be afforded defendant in this case.
Accordingly, defendant is granted ten days from the date of remittitur of this Court to file a correct notice of appeal, pursuant to § 46-17-311, MCA.
TURNAGE, C.J., and HARRISON, WEBER and GULBRANDSON, JJ., concur.