                                           No. 04-393

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 184N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JANA LEHMAN,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Eighth Judicial District,
                     In and For the County of Cascade, Cause No. DDC 2004-089,
                     Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jane M. Berger, Attorney at Law, Great Falls, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Jennifer Anders,
                     Assistant Attorney General, Helena

                     Brant S. Light, County Attorney; Sarah Corbally, Deputy County
                     Attorney, Great Falls, Montana



                                                         Submitted on Briefs: June 29, 2005

                                                                    Decided: July 20, 2005
Filed:


                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Jana Lehman appeals from the District Court’s summary dismissal of her appeal from

her conviction in the Justice Court. We reverse the summary dismissal and remand for

appellate review in the District Court.

¶3     We address the following issue on appeal:

¶4     What relief is appropriate to Lehman given that she has received ineffective assistance

of counsel through the failure of her counsel to file an appeal brief in an appeal from the

Justice Court to the District Court?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5     On May 30, 2003, Lehman was arraigned in the Justice Court for Cascade County on

charges of DUI (2nd Offense), Obstructing a Peace Officer, Minor in Possession of Alcohol,

Misrepresentation of Age to Obtain Alcohol, No Insurance, Driving While Suspended, No

Seatbelt, and Failure to Drive to the Right. On August 25, 2003, the State moved the court

to dismiss the case without prejudice. The court granted the motion the next day. Then, in

September 2003, the State refiled the case, again in Justice Court. After a bench trial




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Lehman was found guilty on January 30, 2004, of all charges except Misrepresentation of

Age to Obtain Alcohol.

¶6     Lehman’s counsel then filed a notice of appeal to district court. However, her counsel

then failed to file an appeal brief in District Court. In the wake of this failure, the State

moved for summary dismissal of the appeal. The District Court granted this motion on April

28, 2004.

                                       DISCUSSION

¶7     What relief is appropriate to Lehman given that she has received ineffective

assistance of counsel through the failure of her counsel to file an appeal brief in an appeal

from the Justice Court to the District Court?

¶8     Lehman appeals the District Court’s summary dismissal on the grounds that she was

provided ineffective assistance of counsel through her former counsel’s failure to file an

appeal brief in the District Court. Since the State concedes that this failure constitutes

ineffective assistance of counsel, we assume that to be the case and turn our attention to the

question of what is the proper remedy.

¶9     Lehman argues that her appeal should be remanded to the District Court and that we

grant her a trial de novo. Prior to 2003, appellants from justice court had the right to a trial

de novo in district court. In 2003 the legislature eliminated trial de novo appeals from justice

courts of record. Instead, in addressing an appeal from a justice court of record, a district

court is confined to a review of the record and questions of law. Section 3-10-115, MCA.

This legislation took effect on July 1, 2003. 2003 Mont. Laws, ch. 389, § 16. However, the

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legislation contained a saving clause, explicitly stating that the new rule did not “affect rights

and duties that matured, penalties that were incurred, or proceedings that were begun before

[July 1, 2003].”

¶10    The Justice Court for Cascade County is a court of record. Therefore, Lehman only

has the right to a trial de novo in district court if she is covered by the saving clause. She

reasons that her “proceedings” began on May 30, 2003, the date of her original arraignment.

However, the State contends that since the case was dismissed without prejudice and later

refiled, the refile date, September 2003, is the date on which the “proceedings” began. We

agree with the State in this regard. When an action is dismissed without prejudice, it is the

same as if the charge had never been filed. See Favel v. Am. Renovation and Const. Co.,

2002 MT 266, ¶ 6 n.2, 312 Mont. 285, ¶ 6 n.2, 59 P.3d 412, ¶ 6 n.2.

¶11    Accordingly, Lehman does not have the right to a trial de novo in district court. This

being the case, it would appear that the correct course of action is a remand to the District

Court for appellate review. However, the State argues that State v. Tweed, 2002 MT 286,

312 Mont. 482, 59 P.3d 1105, counsels that we assume jurisdiction of the appeal. Tweed

involved a defendant receiving ineffective assistance of counsel due to counsel’s failure to

file a notice of appeal. Tweed, ¶ 10. These similarities aside, Tweed is not relevant to the

case sub judice because Tweed was convicted in district court and appealed on the merits to

this Court. Tweed, ¶ 1. Here, Lehman appeals the District Court’s summary dismissal, a

dismissal which barred the District Court from considering the merits in the first place.




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Having decided that Lehman was denied effective assistance of counsel, the proper course

of action is a remand to the District Court for appellate review pursuant to § 3-10-115, MCA.

                                     CONCLUSION

¶12    We reverse the District Court’s summary dismissal of Lehman’s appeal from the

Justice Court. We also remand to the District Court for appellate review of the merits of

the appeal.


                                          /S/ W. WILLIAM LEAPHART



We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ JIM RICE




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