                              NO.     95-560
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1996


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.
DAVID MORA,
          Defendant and Appellant.



APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and for the County of Yellowstone,
                  The Honorable Russell C. Fagg, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
                  Carrie L. Garber, Deputy Public Defender, Billings
                  Montana

          For Respondent:
                  Hon. Joseph P. Mazurek, Attorney General,
                  Jennifer Anders, Ass't Attorney General,
                  Helena, Montana
                  Dennis Paxinos, Yellowstone County Attorney
                  Margaret R. Gallagher, Deputy County Attorney
                  Billings, Montana



                                    Submitted on Briefs:   June 13, 1996
                                                Decided:   August 6, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.


     David Mora (Moral appeals from an order of the Thirteenth
Judicial District Court, Yellowstone County, dismissing his appeal

from a Justice Court conviction.         We reverse and remand.

     The sole issue on appeal is whether the District Court erred

in concluding that it did not have jurisdiction over Mora's appeal.

     On January 21, 1995, Mora was arrested on a charge of driving

under the influence of alcohol (DUI).          Mora appeared before the

Yellowstone County Justice Court on February 6, 1995, and entered
a plea of not guilty.       The Justice Court scheduled a nonjury trial

for May 22, 1995.     Mora's counsel appeared for the trial on that

date, but Mora did not.       The Justice Court denied Morals counsel's

motion for a continuance,         proceeded with the bench trial in

absentia,   and found Mora guilty of DUI.      In an order dated May 30,

1995, the Justice Court reiterated that it had found Mora guilty of
DLJI on May 22,     1995,   and ordered that Mora     "complete   the   ACT

program at the Mental Health Center and a pre-sentence chemical

dependency evaluation and return to Court for sentencing on July

12, 1995 . . .m      The ACT program is an ,alcohol information course

which persons convicted of DUI are required to attend pursuant to
§ 61-8-714., MCA.

     Mora filed a notice of appeal from the Justice Court to the

District Court on the same day the Justice Court entered its order.

The District Court subsequently dismissed Mora's appeal by order

dated June 21, 1995, on the basis that the Justice Court had not

yet sentenced Mora and, therefore, the appeal was premature.            The

                                     2
District Court remanded Mora's case to the Justice                court for
sentencing.

     Mora moved for reconsideration, arguing that the Justice Court

had sentenced him when it ordered that he complete the           ACT   program

prior to formal sentencing and, therefore, his notice of appeal to

the District Court was not premature.        In its order on the motion,

the District Court noted that § 61-8-714(4), MCA (1993), authorizes

a court to order drug or alcohol treatment, as well as the required

information   course,   for a defendant's first DUI conviction; it

reasoned therefrom that a court must have the ability to order

alcohol   information   and   assessment   before   formal   sentencing    for

purposes of determining whether treatment is appropriate.              On that

basis,    the District Court determined that, in ordering Mora to

complete the ACT program and a presentence            chemical dependency
evaluation,   the Justice Court did not sentence Mora,             but only

required that he provide the information it needed to properly
sentence him in the future.      In   addition, the court relied on State

v. West (1992), 252 Mont. 83, 826 P.2d 940, in determining that

alcohol counseling should not be considered part of the sentence

when analyzing jurisdictional questions because it is not ordered

for a punitive purpose.       After concluding that the Justice Court's

order did not constitute a sentence, the District Court reaffirmed

its earlier order dismissing Morals appeal and remanded the case to

Justice Court for sentencing.         Mora appeals.

     Did the District Court err in concluding that it did not have
     jurisdiction over Mora's appeal?

     A defendant in a criminal case may appeal from a justice court

                                       3
to a district court by filing a notice of appeal within 10 days

after the justice court renders a judgment.         Section 46-17-311(2),
MCA.     A judgment includes the sentence pronounced by the court;

thus,     the imposition of a sentence and final           judgment is a
prerequisite for an appeal from justice court to district court.

State v. Todd       (1993),    262 Mont. 108, 111, 863 P.2d 423, 425

(citations omitted).          A notice of appeal which is filed before the
justice court pronounces sentence is premature and does not vest

subject matter jurisdiction in the district court.         Todd 863 P.2d
                                                           -I
at 425.

        Mora contends that the District Court erred when it determined

that the Justice Court did not pronounce sentence by ordering him

to complete the ACT program and receive a presentence chemical

dependency      evaluation.     He argues that no authority exists for a

two-step sentencing procedure in which a defendant is ordered to

complete an alcohol information course and evaluation and then to

return to court for additional sentencing.         Mora asserts that such

a   procedure     impermissibly    circumvents this Court's holding in

Rivera v. Eschler (1989), 235 Mont. 350, 767 P.2d 336.

        The State of Montana (State) contends that, although the

holding in Rivera prohibits a justice court from ordering treatment

after a valid sentence has been imposed, the Justice Court in the

present case avoided that result by ordering Mora to get an alcohol
dependency evaluation before formally sentencing him to treatment.

The State asserts that an order to complete a presentence alcohol

dependency evaluation does not impose a sentence and, therefore,

                                        4
the Justice Court retained the ability to later sentence Mora to

follow any treatment recommendations that may be made after he

attends the ACT program.
     Section 61-8-714, MCA, is the DUI sentencing statute and the

1993 version of the statute applies to Mora's DUI conviction;

subsections (1) through (3) provide the parameters for jail time

and fines within which a court must sentence a person for first and

subsequent DUI convictions.      The portion of the statute at issue

here provides that

      [iln addition to the punishment provided in this section,
     regardless of disposition, the defendant shall complete
     an alcohol information course at an alcohol treatment
     program approved by the department of corrections and
     human services, which may, in the sentencing court's
     discretion and upon recommendation of a certified
     chemical dependency counselor, include alcohol or drug
     treatment, or both.          On conviction of a second or
     subsequent offense under this section, in addition to the
     punishment provided in this section, regardless of
     disposition, the defendant shall complete an alcohol
     information       c o u r s e which must include alcohol or
     drug treatment, or both. The treatment provided to
     the defendant at a treatment program must be at a level
     appropriate to the defendant's alcohol problem, as
     determined by the judge based upon the recommendation
     from the certified chemical dependency counselor.

Section 61-E-714(4), MCA (1993).          By its clear language,      the
statute mandates that,     as part of a DUI sentence, the court must

require the defendant to complete an alcohol information course.

On a first DUI conviction, the court may--in its discretion--also

require   that   alcohol   treatment be     included in     the   alcohol

information   course,   but only if a certified chemical dependency

counselor recommends such treatment.       Thus,   while the requirement

that the alcohol information course be completed is part of the

                                   5
sentence,     a court necessarily must obtain a chemical dependency
evaluation and recommendation prior to sentencing if it is inclined

to consider requiring alcohol treatment as part of the sentence.

Although a presentence evaluation is in the nature of a presentence

investigation    which,    pursuant to § 46-18-111, MCA, may only be

ordered by a district court, § 61-8-714(4), MCA (1993), clearly

authorizes a court sentencing a defendant convicted of a first

offense DUI to order and obtain a presentence chemical dependency

evaluation.

     Here,    the Justice Court ordered Mora to 1) complete the ACT

program; 2) complete a presentence chemical dependency evaluation;

and 3) return for sentencing.     Under § 61-e-714(4), MCA (1993), the

requirement that Mora complete the alcohol information course

clearly is a sentence.

     If the Justice Court desired to consider including alcohol

treatment in Mora's sentence, the statute required it to obtain a

chemical dependency evaluation and recommendation prior to imposing

any part of the sentence,       but   not   concurrently   with   imposing   a

sentence.     Indeed,   the Justice Court may have attempted to do so

here by requiring Mora to obtain the evaluation and then return for

sentencing.     These two steps, without the earlier order sentencing

Mora to complete the alcohol information course, would have enabled

the Justice     Court     to obtain the desired evaluation and then

determine whether to include alcohol treatment in Mora's sentence.

We conclude, however, that the initial sentence that Mora complete

the course negated any further sentencing authority in the court.


                                      6
      Rivera does not resolve the precise issue presently before us,

but it clearly supports our conclusion.               In Rivers., the defendant

was   convicted of DUI           and the justice court          included in the

defendant's sentence a requirement that she attend a DUI school and

complete "treatment as necessary."              Rivera,    767 P.2d at 337.   When
the defendant completed the counseling portion of the DUI school,

her counselor recommended that she receive in-patient alcohol

treatment.         Rivera,    767 P.2d at 337.            The justice court then
modified     the    defendant's    sentence,     ordering her to follow the

recommendations        of    the counselor and adding certain specific

requirements to the sentence.              Rivera,   767 P.2d at 337.     We held

that 5 61-f-714, MCA, the DUI sentencing statute, contemplated that

all punishment and treatment be contained in the original order.

Rivera,    767 P.2d at 338.        Thus,   when the justice court's original

order required the defendant to complete DUI school and treatment

as necessary, it imposed a valid sentence and, once that sentence

was imposed, the justice court had no authority to later modify it.

Rivera,    767 P.2d at 338.

      Nor does West, on which the District Court relied, support the

State's argument that the Justice Court did not sentence Mora when

it ordered that he complete the ACT program.                The defendant in West

argued,    in part,       that the justice court did not have original

jurisdiction       over      his case because the sentence          for his DUI

conviction     included a        requirement     that he attend an alcohol

treatment program, which program potentially could exceed the one-

year maximum penalty for a misdemeanor offense. -, 826 P.2d at
                                                West


                                           7
946.      This Court held that including alcohol treatment in a

defendant's DUI sentence did not increase the offense to a felony,
even though there was no time limit on length of the treatment,

because the purpose of requiring a defendant to attend treatment is

to protect the public from DUI offenders rather than to punish the

defendant.      West, 826 P.2d at 946.            We also held in WeSt that the

purpose of alcohol treatment is to try to rehabilitate the offender

"in an     effort to reduce the number of fatalities                     related to

                                                       West
drinking and driving on Montana's roads and highways." -,                            826

P.2d at 946.     Nowhere in West did we state or indicate that alcohol
treatment or counseling is not part of a DUI sentence; we simply

held    that   treatment    serves     the   purpose    of    rehabilitation      rather

than    punishment      within   the   sentence.       The West holding merely
reiterates Montana's statutorily stated correctional policy, which

is "to protect society by preventing crime through punishment and

rehabilitation of the convicted."                See 5 46-18-101(2), MCA. Thus,

the District Court misapplied West in concluding that alcohol

counseling     and   treatment     should not be considered part of the

sentence when determining jurisdictional issues.

       The record before us reflects that the Justice Court sentenced

Mora when it ordered him to complete the alcohol information course

which, pursuant to § 61-8-714(4), MCA (1993), is a required part of

DUI sentences.       At that point, the Justice Court lost jurisdiction

to     later   modify     that   sentence.          Rivera,     767   P.2d   at     338.

Additionally, once the Justice Court imposed sentence, judgment had

been rendered and the sentence and final judgment which are the

                                             8
prerequisites for an appeal from justice court to district court
had been fulfilled.   Todd
                      - I    863 P.2d at 425.   We hold, therefore,

that Mora's notice of appeal     from the Justice Court was not

premature and that the District Court erred in concluding that it

did not have jurisdiction over the appeal and in dismissing the

appeal.

     Reversed and remanded for further proceedings consistent with

this opinion.




     aa   Justices
