                                           NO. 04-205

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 134


CITY OF BILLINGS,

           Plaintiff and Respondent,



TYEREL GARY DILL,

           Defendant and Appellant.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DC 2001-580,
                   -   Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                       Jack E. Sands, Attorney at Law, Billings, Montana

           For Respondent:
               '
                       Honorable Mike McGrath, Attorney General; Jon Ellingson,
                   '
                       Assistant Attoi-ney General, Helena, Montana

                       Brent Brooks, City Attorney, Billings, Montana


                                                        Submitted on Briefs: April 6,2005

                                                                  Decided: May 3 1,2005

Filed:
Justice Jim Rice delivered the Opinion of the Court.

11     Tyerel Dill (Dill) appeals from thejudgment entered by the Thirteenth Judicial District

Court, Yellowstone County, on December 10,2003, affirming his conviction and sentence

imposed by the City of Billings Municipal Court. We dismiss for lack of jurisdiction.

72     We address the following issue:

73      Was the notice of appeal untimely filed, thus precluding the exercise of appellate

jurisdiction?

                  FACTUAL AND PROCEDURAL BACKGROUND

74      In the early morning hours of December 30, 1999, Dill was visiting his mother,

Bonnie Dill, and her companion, Roger Edwards (Edwards), who were staying at the Billings

Sheraton Hotel, when an argument arose between Dill and Edwards. Edwards called

security, and Tracy   skins (Askins) of Guardian Security came to the room and told Dill to
leave. In the process of stepping between Dill and Edwards, Askins claimed he was punched

in the nose by Dill. Two Sheraton Hotel employees then arrived and escorted Dill out of the

room, where another dispute arose in the hallway. The security guard and other hotel

employees attempted to detain Dill until the police arrived, at which time Dill grabbed the

security guard's pepper spray, and, as a result of the struggle, the cannister discharged in the

hallway.

75     Officer Jim Woog (Officer Woog) of the Billings Police Department then arrived,

encountered the ongoing disturbance in the hallway and tried to de-escalate the situation.

Officer Woog handcuffed Dill and escorted him down the elevator, through the lobby and

                                               2
out the Hotel's front door, at which time Dill spit in Officer Woog's face. Officer Woog then

forced Dill to the ground and used pepper spray to subdue him.

76      Dill was originally charged with assault, assault with a bodily fluid, and obstructing

a police officer, all misdemeanors, resulting from the incident. Dill initially went to trial in

Billings Municipal Court on June 22 and 23,2000. He was convicted of assault with bodily

fluid and acquitted of the other two charges.

77      Dill appealed his conviction to the District Court which ordered a new trial on the

assault with bodily fluid charge, because of an error in the jury selection process. A second

trial was held in Billings Municipal Court on May 24,200 1, wherein the jury convicted Dill.

He again appealed to the District Court, which affirmed his conviction on December 10,

2003.

78      On February 12,2004, Dill filed his Notice of Appeal, sixty-three days after the date

of entry of judgment.

                                        DISCUSSION

79      Was tlze notice of appeal zilztii?zelyJiled,tlzus preclzidiizg tlze exercise of appellate

jurisdiction ?

710     Rule 5(b), M.R.App.P., defines the time period for filing a notice of appeal in a

criminal case: "In criminal cases an appeal from a judgment entered pursuant to section 46-

18-116, Montana Code Annotated must be taken within 60 days after entry of judgment

appealed from." We have held that "[tlhis Court is without jurisdiction to hear an appeal
filed more than 60 days after judgment." State v. Rice (1996), 275 Mont. 8 1, 83, 9 10 P.2d

245,246.

111    Dill appeals from the judgment entered by the District Court in this action on

December 10,2003. Dill's notice of appeal was filed February 12,2004, sixty-three days

after the entry of the judgment.

712    The City of Billings contends Dill's appeal is not timely because he failed to file his

notice within the sixty-day period provided by Rule 5(b), M.R.App.P., and therefore, this

Court has no jurisdiction to consider Dill's appeal and must dismiss. In response Dill argues

his appeal is timely because Rule 21(e), M.R.App.P., allows an additional three days when

service of a paper is made by mail. Dill argues that because the District Court's order was

mailed to him, the appeal time was extended by three days.
                                            -
y13    Rule 21(e), M.R.App.P., provides as follows:

       Whenever a party is required or permitted to do any act within a prescribed
       period after service of a paper upon such party and the paper is served by mail,
       3 days shall be added to the prescribed period.

This Court explained the application of this rule in Montana Fair Housing, Inc., v. Barnes,

2003 MT 16,314 Mont. 73, 68 P.3d 653, holding that:

       Rule 2 1(e) only applies to situations involving response-type pleadings--that
       is, when parties are required or permitted to file a document or brief after
       having had a brief or paper served upon them. When a filing deadline is
       specified by the Court or when a document is required by Court rule to befiled
       witlzin a specified tirlze, Rule 21(e) does not apply, and the party does not get
       the benefit of an extra three days for mailing.

Barnes, (IT 4 (emphasis added).
,
    714    Rule 5(b), M.R.App.P., requires an appeal from a judgment in a criminal case to be

    filed "within a specified time," that is, within sixty days after entry ofjudgment. Barnes, 7 4.

    As a deadline specified by rule, it is not extended by the three-day mailing provision of Rule



    715    Because this appeal was filed more than sixty days after judgment was entered this

    Court is without jurisdiction to hear the appeal. Rice, 275 Mont. at 83, 910 P.2d at 246.

    Jurisdiction can be raised any time, and if the Court does not have jurisdiction because the

    notice was not timely filed, then the Court is obligated to dismiss. Rice, 275 Mont. at 83,85,



    116    Dill had sixty days from the date judgment was entered in which to appeal his

    conviction of assault with bodily fluid. Because Dill .failedto file an appeal within the time

    allotted, this Court has no jurisdiction to hear his appeal.

    717    The appeal is dismissed.




    We Concur:
                                   A
                                                May 3 1, 2005


                                       CERTIFICATE OF SERVICE

     I hereby certify that the attached document was sent by United States mail, prepaid, to the following
     named:

    'JACK E SANDS
      ATTORNEY AT LAW
      100 N 27TH STE 250
      BILLINGS MT 59101

,HON MIKE MCGRATH        ATTORNEY GENERAL
     JON ELLINGSON ASSISTANT
     PO BOX 201401
     HELENA MT 59620- 1401

/    BRENT BROOKS
     BILLINGS CITY ATTORNEY
     PO BOX 1178
     BILLINGS MT 59103-1178

                                                           ED SMITH
                                                           CLERK OF THE SUPREME COURT

                                                           STATE OF MONTANA

                                                           BY:   A. B u & h
