                                 NO. 8 8 - 7 9
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1988



STATE OF MONTANA,
                 Plaintiff and Respondent,
         -VS-

BRADLEY E. RENDER,
                 Defendant and Appellant.




APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Steven D. Nelson, Bozeman, Montana
         For Respondent:
                 Hon. Mike Greely, Attorney General, Helena, Montana
                 John Paulson, Asst. Atty. General, Helena
                 A. Michael Salvagni, County Attorney, Bozeman, Montana
                 Jennifer Bordy, Deputy County Atty., Bozeman, Montana



                                    Submitted on Briefs:   June 9 ,   1988

                                       Decided:   June 21, 1988

Filed:   JUN 2 1 1988



                                    Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      This is an appeal from the District Court of the
Eighteenth Judicial District, Gallatin County, Montana. We
vacate the District Court's judgment and remand to the
District Court for a new trial by jury.
      The issue on appeal is:     Does an appellant who has
waived a trial by jury in Justice Court and thereafter
appeals his conviction to the District Court have the right
to a trial by jury in the District Court?
      Appellant, Bradley E. Bender was charged in Justice
Court, Gallatin County, with a misdemeanor. Appellant waived
trial by jury and was tried by the Justice of the Peace in a
bench trial. The Justice Court found the appellant guilty,
and he appealed to the District Court.           Counsel for
appellant on November 6, 1987, informed the District Court
that his client requested a jury trial. The District Judge,
upon learning that there had not been a jury trial in Justice
Court, ruled that appellant was not entitled to a trial by
jury in the District Court. On January 8, 1988, immediately
prior to trial in the District Court, counsel for appellant
objected to trial without a jury. The District Court again
ruled that appellant was not entitled to a jury trial. After
a bench trial, the District Court found the appellant guilty
of the offense charged.
      As counsel for respondent, the Attorney General of the
State of Montana notes that appellant made a timely request
for a jury trial in the District Court and recommends that
this case be remanded to the District Court with instructions
to afford the appellant a trial by jury unless a written
waiver is filed pursuant to S 46-16-102, MCA, which provides:
           (1) Defendants in all criminal cases
           shall have a right to trial by jury not
           to exceed 12 in number. The parties may
           agree in writing at any time before the
           verdict, with the approval of the court,
           that the jury shall consist of any
           number less than 12.
           (2      Upon written consent of the
           parties, a trial by jury may be waived.
      The Constitution of the State of Montana, Article 11,
Sec. 24, provides:
           In all criminal prosecutions the accused
           shall have the right to appear and
           defend in person and by counsel; to
           demand the nature and cause of the
           accusation; to meet      the witnesses
           against him face to face; to have
           process to compel the attendance of
           witnesses in his behalf, - - speedy
                                      and a
           public trial 2 an impartial jury of the
           county or district in which the offense
           is alleged to have been committed,
           subject to the right of the state to
           have a change of venue for any of the
           causes for which the defendant may
           obtain the same. (Emphasis added.)
Section 46-17-311(1), MCA, provides:
           (1) All cases on appeal from justices'
           or city courts must be tried anew in the
           district court and may be tried before a
           jury of six selected in the same manner
           as a trial jury in a civil action,
           except that the total number of jurors
           drawn shall be at least six plus the
           total number of peremptory challenges.
         See, Adair v.         Lake County J u s t i c e C o u r t     (Mont.    1984) ,
692 P.2d       13,    4 1 St.Rep.       2241,    and C i t y o f    Hardin v.     Myers
(Mont. 1 9 8 1 ) , 633 P.2d 677, 38 St.Rep.                1512.
         The    judgment      of    t h e D i s t r i c t Court    finding defendant
g u i l t y i s v a c a t e d and t h i s c a u s e i s remanded t o t h e D i s t r i c t
C o u r t f o r a t r i a l anew b e f o r e a j u r y .




W e concur:                                          V
