                              NO.                93-351

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           1994



STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
ROBERT DEAN ROGERS,                                                              OCT 25 1994


APPEAL FROM:     District Court of the Eighteenth Judicial District,
                 In and for the County of Gallatin,
                 The Honorable Larry W. Moran, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 William M. Brooke; Moore, O'Connel                                     Refling,
                 Bozeman, Montana

            For Respondent:
                 Hon. Joseph P. Mazurek, Attorney General, Carol
                 Schmidt, Assistant Attorney General, Helena, Montana
                 Mike Salvagni, Gallatin County Attorney, Bozeman,
                 Montana



                                        Submitted on Briefs:                           June 23, 1 9 9 4
                                                                            Decided:   October 25, 1994
Filed:
                                  %.
                                  '                    ,q
                                       ' 7       /i!"PA,claas
                                                      .,'Y "lOg'L*:    4
                                                                      Vb
                                                                       id
                              .        %     ;
                                             ,   3'
                                        ~lerk
Justice Karla M. Gray delivered the Opinion of the Court.

     Robert Dean Rogers (Rogers) appeals from an order of the
Eighteenth Judicial District Court, Gallatin County, granting the
State of Montana's Motion to Dismiss Appeal.         We reverse.
     Rogers was charged in Gallatin County Justice Court with the
misdemeanor offenses of assault and resisting arrest pursuant to
5 5 45-5-201 and 45-7-301, MCA, respectively. He ultimately entered
guilty pleas to both charges and was sentenced to six months in
jail, suspended on conditions including that he obey all laws.
     Rogers subsequently was arrested and charged with driving
under the influence, driving without liability insurance in effect,
and driving without a valid driver's license.            On the basis of
those charges, the State of Montana (State) filed a Petition to
Revoke Suspended Sentence in the Justice Court.               A revocation
hearing was scheduled for, and held on, October 30, 1992.              The
Justice Court Minutes reflect that the State presented evidence via
three witnesses; Rogers presented no evidence.          The Justice Court
found that Rogers had violated the conditions of his suspended
sentence.     The    court   again   suspended   his    sentence, adding
additional conditions to those originally imposed.
     Rogers appealed to the District Court for a trial de novo on
the petition for revocation of his suspended sentence.            The State
moved to dismiss the appeal, arguing that no appeal is available
pursuant to         46-17-311, MCA,      because a     suspended sentence
revocation    is    an   administrative,    rather     than   a   criminal,
proceeding. Rogers responded that a broader reading of the statute
                                     2
and       several Montana    Supreme Court cases was appropriate and
necessary in order to provide for an appeal de novo under these
circumstances. Following a hearing, the District Court granted the
State's motion.      Rogers timely filed his notice of appeal to this
Court.
          In granting the Statersmotion to dismiss Rogers1 appeal, the
District Court determined that a revocation is an administrative
proceeding rather than a criminal adjudication.          Thus, the court
reasoned, the revocation of a suspended sentence is not a judgment
from which an appeal de novo may be taken pursuant to 5 46-17-311,
MCA   .
          The procedures to be followed in a proceeding for revocation
of a suspended sentence are set forth in 5 46-18-203, MCA.         It is
clear from that statute that a revocation proceeding is not
equivalent to a criminal trial: only a hearing, rather than a
trial, is required; the prosecution's burden of proof is only a
preponderance of the evidence; and the issue is not one of guilt or
innocence, but is whether the person has violated a condition of a
suspended sentence.         Section 46-18-203, MCA.   Our cases recognize
these basic differences between revocation proceedings and criminal
trials. See, e.g., State v. Watts (1986), 221Mont. 104, 717 P.2d
24; State v. Robinson (1980), 190 Mont. 145, 619 P.2d 813; State v.
Oppelt (1979), 184 Mont. 48, 601 P.2d 394; State v. Ryan (1975),
166 Mont.       419, 533 P.2d     1076.    The cases do not, however,
characterize revocation proceedings as uadministrative" hearings,
as the State argues and the District Court concluded.
      Section 46-17-311, MCA, provides for appeals from justices'
and city courts to district courts, and requires trial de novo in
the district courts.    Located as it is in the Criminal Procedure
Title of the Montana Code Annotated, the statute can be construed
as   providing   for appeals only        in   criminal matters.         This
interpretation is further clarified by the language contained in
5 46-17-311(2), MCA, which requires written notice of intention to
appeal within 10 days "after a judgment is rendered following
trial." As discussed above, a revocation hearing is not a criminal
trial.
      Moreover, as the State points out, a lljudgment"--asthe term
is used in 5 46-17-311(2), MCA--includes an adjudication of whether
a    defendant   is guilty    or   not   guilty   and,   if   guilty,    the
pronouncement of sentence. See 5 46-1-202(10), MCA.           Here, while
the multi-purpose form utilized by the Justice Court indicates that
the court "found defendant guiltyN of violating the conditions of
his suspended sentence, 5 46-18-203, MCA, does not speak to llguiltll
or "innocence" in the context of revocation hearings.          Rather, it
simply   requires the court to determine whether or not the
prosecution has proved a violation of the conditions of the
suspended sentence by a preponderance of the evidence. Section 46-
18-203 (6) (8), MCA.
          -            Thus, a straightforward reading of 5 46-17-
311, MCA, and our cases, appears to support the District Courtls
conclusion that an appeal de novo is not available here.
      The problem with       that conclusion, however,        is that     it
forecloses any appeal to, or review by, any court from a justice
court's revocation of a      suspended sentence.       Nor   does the
conclusion take the legislature's intent into account. Appeals for
de novo proceedings in district courts are statutorily provided for
in criminal and civil matters pursuant to g 46-17-311 and Title 25,
Chapter 33, MCA, respectively.     We conclude that, taken together,
these statutes reflect the legislature's intent to provide for
appeals de novo to the district courts from all final justice court
proceedings.
      The only remaining question, then, is whether the legislature
intended appeals de novo      from justice court revocations of
suspended sentences to be governed by 9 46-18-203, MCA, or Chapter
33 of Title 25 of the Montana Code Annotated.       The legislature
placed g 46-18-203, MCA, governing revocation proceedings in the
Criminal Procedure Title of the Montana Code Annotated.            It
included in that statute the following provisions which are
substantially similar to those relating to criminal trials:
      1.   An arrest warrant may be issued upon the filing of a
petition to revoke a suspended sentence;
      2.   Statutes relating to bail are applicable;
      3.   The ITdefendantnmust be advised of, and provided, many of
the same rights as in criminal proceedings, including the right to
court-appointed counsel in the event counsel cannot be afforded;
and
      4.   Jail time may result.   Section 46-18-203, MCA.
      Furthermore, we have recognized that revocation proceedings
are matters over which the original sentencing court in a criminal
case "retains jurisdiction."    Ouuelt, 601 P.2d at 397.          Thus,
revocations are a postconviction continuation of criminal cases.
Indeed, it is clear that a criminal defendant whose sentence has
been suspended has a liberty interest in retaining the suspended
nature of his or her sentence, and faces the possibility of a loss
of that liberty via a revocation proceeding in justice court.        We
have specifically recognized that a liberty interest is at stake in
revocation proceedings.   See, Robinson, 619 P.2d at 814-15.
     Based on these cogent and numerous similarities between
criminal and revocation proceedings, we hold that appeals de novo
from justice court revocations of suspended sentences are available
under, and governed by, 5 46-17-311, MCA.       In this regard, however,
the 5 46-17-311(1), MCA, language that appeals from justice court
to district court "may be tried before a jury        .. .   " clearly is
inapplicable to the appeals at issue herein because the issue of
whether a suspended sentence will be revoked is not subject to
trial by jury initially in the justice court.           We conclude by
observing that nothing in this opinion impacts on our prior cases
distinguishing, for purposes of the issues presented therein,
between revocation proceedings and criminal adjudications.
     Reversed and remanded for further proceedings consistent with
this opinion.                               /



We concur:        A
Justices
Justice Terry N. Trieweiler specially concurring.
     I concur with the result of the majority opinion. However, I
do not agree with all that is said in that opinion.
     Specifically, I disagree with the majority's and the dissent 's
conclusions that "a straightforward reading of 5 46-17-311, MCA,
and our cases, appears to support the District Court's conclusion
that an appeal de novo is not available here."
     A straightforward reading of 5 46-17-311, MCA, compels the
conclusion   that   an   appeal   de novo   is   permitted   under   the

circumstances in this case.
     Section 46-17-311(2), MCA, provides in relevant part that
I1[t]he defendant may appeal to the district court by filing written
notice of intention to appeal within 10 days after a judment is
rendered following trial."    (Emphasis added.) Trial is defined in
Black's Law Dictionary as:
     A judicial examination, in accordance with law of the
     land, of a cause, either civil or criminal, of the issues
     between the parties, whether of law or fact, before a
     court that has jurisdiction over it. For purpose of
     determining such issue.
          It includes all proceedings from time when issue is
     joined, or, more usually, when parties are called to try
     their case in court, to time of its final determination.
Black's Law Dictionary 1657        (Rev. 4th ed.     1976)   (citations
omitted).
     The defendant's revocation hearing was a judicial proceeding
at which evidence was presented, witnesses were called and cross-
examined, and factual issues were resolved by the Justice Court.
While it may not have been a "criminal adjudicationt' for the
purpose of requiring the constitutional guarantees considered in
our previous cases, see State v. Ryan (1975), 166 Mont. 419, 533 P.2d

1076; Statev. OppeIt (1979), 184 Mont. 48, 601 P.2d 394; Statev. Robinson

(1980), 190 Mont. 145, 619 P.2d 813, it was, nevertheless, a trial
as   that   term    is   commonly    understood    in    Anglo-American
jurisprudence.
     There is nothing really complicated or elusive about defining
the terh "trial."    Most first-year law students could recite that
a trial is an adversary proceeding at which evidence is presented,
and as a result of which, factual or legal issues are resolved.
Definingthe term only becomes complicated when someone insists, as
the dissent does, on arriving at the word's meaning by patching
together the quilt work of resu:Lt-oriented decisions in which this
Court has created a subspecies of Iftrial" known as the "criminal
trialu or "criminal adjudication" for the purpose of avoiding at a
revocation hearing the constitut:ional protections that apply to the
initial determination of a defendant ' guilt. However, those cases
                                      s
have no application here. We are not asked in this case to decide
whether this revocation was a. t*criminaladjudication" for the
purpose of applying due process, double jeopardy, or any other
constitutional guarantee. We are simply asked in this case whether
this adversary proceeding at wh.ich evidence was taken and factual
issues were resolved was a g*itrialwwithin the meaning of our
statute which authorizes appeals from decisions of the justice
court.   Sometimes by trying too'hard, we overlook the obvious.
     Similarly, when   the District Court amended      defendant's
previously   imposed sentence, the District Court amended its
judgment, and thereby entered a new judgment.       A judgment is
commonly understood to be "[tlhe official and authentic decision of
a court of justice upon the respective rights and claims of the
parties to an action or suit therein litigated and submitted to its
determination."   Black's Law Dictionary 977 (Rev. 4th ed. 1976)
(citations omitted).
     While the statutory definition of "judgment" refers to an
adjudication of guilt or innocence, that same statutory definition
includes the sentence pronounced by the court.       Section 46-1-
201(10), MCA. Therefore, any amendment to that sentence is no less
an amendment to the court's judgment, and defendant's right to
appeal from the amendment is no less important than his right to
appeal from the original judgment.      To hold that there is a
statutory right to appeal from judgments entered in justice court,
but not from amendments to a judgment entered in justice court
simply because the Legislature did not spell that fact out, exalts
form over substance and would frustrate the purpose for which
appeals from justice court judgments are allowed.
     Therefore, I too would reverse the judgment of the District
Court and allow defendant to proceed with his appeal from Justice
Court to District Court. However, for the above reasons, I do not
agree with all that is said in the majority opinion.
J U S ~ James C.
        ~ C ~      Nelson, dissenting.

     I respectfully dissent from the Court's opinion in this case.
We conclude that   'I.   . .   a straightforward reading of   §   46-17-311,
MCA, and   our cases, appears            support the                   Court
conclusion that an appeal de novo is not available here."             I agree,

and that, necessarily, is where our inquiry in this case must end.
     Dissatisfied with the obvious, however, we then step through
the looking glass and conclude that "taken together        ...        ( 5 46-17-
311 and Title 25, chapter 33, MCA] reflect the legislature's intent

to provide for appeals de novo to the district courts from all
final justice court proceedings.'1         Exactly where that intent is
reflected in the otherwise clear and unambiguous statutory scheme
at issue, is not evident in our opinion       --   most likely because the
legislature's expressed intent is quite the opposite.                 I submit
that justifying our decision here on the basis of the legislature's
"intent" merely stands as our testament to the way we wished the
law was, rather than a forthright interpretation of what the law
actually is.
     I begin with the rules of statutory construction so oft
repeated by this Court, and most recently so well summarized in our


Vilensky v. District Court, (August 30,        1994),   - Mont    .   -I    -

P . 2 d , 51 St. Rep. 776.         There, we stated:
          Our role in construing statutes is clear. We must
     "ascertain and declare what is in terms or in substance
     contained therein.. . ; I T w e may not insert what has been
     omitted or omit what has been inserted. Section 1-2-101,
     MCA. The intention of the legislature is to be pursued.
    Section 1-2-102, MCA.      If that intention can be
    determined from the plain meaninq of the words used, a
    court may not qo further and aaplv other means of
    interpretation. (Citation omitted.) Where the statutory
    language is "plain, unambiguous, direct and certain, the
    statute speaks for itself and there is nothing left for
    the court to construe." (Citation omitted.) (Emphasis
    added. )
Curtis    &   Vilensky, 51 St. Rep. at 778.
    There is no uncertainty or ambiguity in 5 46-17-311, MCA, that
requires us to divine legislative intent; the statute is clear and
direct.       The legislature has plainly expressed its intent in the
clearest language and has provided for appeals, by trial de novo,
from the courts of limited jurisdiction to the district courts only
"after a judgment is rendered following trial."                  Section 46-17-
311(2),       MCA.      A   "judgment"     is   statutorily    defined   as   the
adjudication of guilt or innocence and includes the pronouncement
of sentence.         Section 46-1-202(10), MCA.
     It is undisputed        --   and our opinion acknowledges the fact --
that a probation revocation hearing is                 not    a "trial" and a
revocation of probation following a hearing is                not a "judgment."
There is absolutely no language in either 5 46-17-311, MCA, or                  §

46-18-203, MCA, by which the legislature has either explicitly or
implicitly statutorily provided for the right of appeal de novo to
the district court from a probation revocation by a court of
limited jurisdiction.             The legislature has, to the contrary,
clearly limited, by statute, the right of appeal from courts of
limited       jurisdiction     to    the    district    courts    in     criminal
proceedings, to those proceedings involving the adjudication of
guilt or innocence and pronouncement of sentence following a trial.
    Our cases are legion. The right of appeal exists only by
statute or rule.    McClurg v. Flathead County Com'rs (1978), 179
Mont. 518, 519, 587 P.2d 415, 416.      Appeal is a creature of and
exists only by statute, and without supporting statutes, there is
no appeal.   Matter of Sage Creek Drainage Area (1988), 234 Mont.
243, 248, 763 P.2d 644, 647; State v. District Court (1955), 128

Mont. 538, 544, 279 P.2d 691, 694. The right of appeal is purely
statutory. Matter of Sase Creek Drainaqe Area, 763 P.2d at 647;
Sheridan County Electric Co-op v. Anhalt (1953), 127 Mont. 71, 74,
257 P.2d 889, 890; Corcoran v. Fousek (1951), 125 Mont. 223, 224,
233 P.2d 1040, 1041. (Emphasis added.)

     In State v. Hartford (1987), 228 Mont. 254, 256, 741 P.2d
1337, 1338, we stated:
     Compliance with the statute is required to perfect an
     appeal from a Justice Court to the ~istrict  court because
     an appeal is exclusivelv a statutory riqht. State v.
     Province (Mont. 1987). 1226 Mont. 425.1 735 P.2d 1128. 44
     St. Rep. 775, 776; stage v. ort tens on' (l978), 175 ~ d n t .
     403, 574 P.2d 581. (Emphasis added.)
     Moreover, statutes relating to appeals are mandatory and
jurisdictional and prohibitory and jurisdictional in that they

limit the right of appeal to the method expressly provided by
statute.   Montana Power Co. v. Dept. of Public Serv. Reg. (1985),
218 Mont. 471, 479, 709 P.2d 995, 999; State v. District Court of
the Tenth Judicial District (l955), 128 Mont. 526, 528, 278 P.2d
1000, 1001; In re Malick's Estate (1951), 124 Mont. 585, 589, 228
P.2d 963, 965.
     In this case, there is no statute; there is no rule; there is
no procedure by which a defendant can appeal a probation revocation
                                  13
by a court of limited jurisdiction to the district court and

receive a trial de novo with respect to the grounds for revocation.
That we have now judicially created such a right from whole cloth
does not give jurisdiction to the district courts to entertain such
an   appeal.   That right of appeal can be       created and      that
jurisdiction granted only by statute or rule.
      Finally, I do not agree with      the reasoning of Justice
~rieweiler'sspecial concurrence that, contrary to our opinion, a
probation revocation proceeding & a trial.          This Court has
heretofore defined the word "trial" in the context of criminal
cases :
      The word "trial," when used in connection with criminal
      proceedings, means proceedings in open court, after the
      pleadings are finished and it is otherwise ready, down to
      and including the rendition of the verdict.
State v. Spotted Hawk (1899), 22 Mont. 33, 45, 55 P. 1026, 1028.
See, also, State v. Koch (1906), 33 Mont. 490, 496, 85 P. 272, 274;
State v. Reed (1922), 65 Mont. 51, 56, 210 P. 756, 757; State v.
Test (1922), 65 Mont. 134, 137, 211 P. 217, 218; Rosebud County v.
Flinn (1940), 109 Mont. 537, 541, 98 P.2d 330, 333, in accord.
      A "verdict" is:

      The formal decision or finding made by a jury, impaneled
      and sworn for the trial of a cause, and reported to the
      court (and accepted by it), upon the matters or questions
      duly submitted to them upon the trial. The definitive
      answer given by the jury to the court concerning the
      matters of fact committed to the jury for their
      deliberation and determination.
Black's Law Dictionary, (5th ed.      1979), at 1398.      (Citation
omitted. )
      Whatever might the ttcommonlyunderstood     [definition of a
criminal trial] in Anglo-American jurisprudence," that is clearly
not how this Court has defined the term and how that term is
commonly understood in Montana.       The "trialn portion of a criminal
case ends with the determination of the defendant's guilt or
innocence by the finder of fact and the pronouncement of sentence.
Spotted Hawk, 55 P. at 1028 ;   §§   46-17-311(2) , MCA and 46-1-202(lo),
MCA.   See also, generally, Title 46, Chapters 16 and 17, MCA.
       Despite our best attempts to justify the unjustifiable, the
long and short of     it is that, we have plainly usurped the
prerogative and function of the legislature to statutorily create
and define the parameters of and procedures governing appeals from
courts of limited jurisdiction to the district courts.           Whether
there should be a right of appeal under the circumstances of this
case and, if so, what procedures should control the exercise of
that right is not the issue here.        That is for the legislature to
decide, not this Court.
       The plain language of         46-17-311, MCA, does support the
District Court's conclusion; the court was correct; its decision
should be affirmed. Accordi




Justice Fred J. Weber concur
