                            NO.    94-348
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


STATE OF MONTANA,
          Plaintiff and Respondent,


WILLIAM JOSEPH VOTH, JR.,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Thomas A. Olson, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Karl P. Seel, Attorney at Law,
               Bozeman, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Brenda Nordlund, Assistant Attorney General,
               Helena, Montana
               Mi.ke Salvagni, Gallatin County Attorney,
               Jane Mersen, Deputy County Attorney,
               Bozeman, Montana


                            Submitted on Briefs:       January 19, 1995
                                            Decided:   March 23, 1995
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     On November 17, 1993, William Joseph Voth, Jr., was found

guilty of,     and sentenced,        for contempt of court for failing to

personally appear at trial in Gallatin County Justice Court on

September     29,    1993.      Voth petitioned the Eighteenth Judicial

District    Court,    Gallatin County,         for a writ of certiorari.            The
District Court denied the petition and stated that the Justice

Court properly held Voth in contempt.                Voth appeals.         We reverse
and remand.

     We frame the issue on appeal as follows:

     Did the District Court err by concluding that the Justice

Court properly held Voth in contempt of court for appearing at

trial through counsel rather than in person?

     On January 9,           1993,   Officers     Wade   and Slaughter          of the

Gallatin    County    Sheriff's      Department    arrested      and    cited   William

Voth, Jr., for driving under the influence of alcohol and/or drugs,
a misdemeanor.       Following his arrest, Voth posted bond and signed

a pre-printed form which provided that he would appear in Justice

Court on either January 11 or 13 for arraignment.                  Voth appeared in

Justice Court on January 11, 1993. He signed a waiver of his right

"to consult an attorney before entering a plea," filled out an

application    for    court-appointed         counsel,   which    was    subsequently

denied,    and pled not guilty.

     On January :Ll,         Voth also signed a pre-printed form entitled

"Order for Conditions of Bail/Notice of Hearing/Trial."                             The

pre-printed order consists of four sections.                     The    first   section

                                          2
provided spaces for Voth's name, the case number, and the statutory
violation.       The second section provided:

                               Defendant SHALL NOT
             Leave Gallatin County                 Possess Firearms
        x    Leave the State of Montana       x Use alcohol or drugs
             Contact in ANY WAY unless directed to by the court:

The third section provided:

                                 Defendant    SHALL
        &   Post Bail $ 551.00 (cont.)             Be released O/R
        2   Obey all laws                     -.&- Make all court Appearances
        x   Notify the court of any change in address/phone#
        _   Check into the Detention Center: Every Day/Week at :  -m
        _   Other conditions:
              Keep court informed of current address

        Remanded to Sheriff in Lieu of: _ Posting Bail __ Pending Release

The     fourth    section,     labeled    "Trial/Pretrial       Hearing/Pretrial

Hearing,"     indicated that Voth requested a jury trial, set a trial

date for May 26, 1993,         set a pretrial hearing date for April 23,

1993,    and designated the name          of the presiding Justice of the

Peace.      The final line of the pre-printed order preceding Voth's

signature     provided:

        I have   read the above and agree to abide by all
        conditions.   I understand if I do not abide by them or
        appear for trial my bail/bond will be forfeited and a
        warrant issued for my arrest.

        On or about April 23, 1993, attorney Karl P. See1 filed a

notice of appearance as counsel of record on behalf of Voth.                    Upon

the County Attorney's motion to continue, the Justice Court issued

an order on May 6 resetting trial for June 9.                 The order stated:

'I [Ylou are further notified that if you do not appear, the Court

shall take appropriate action and award costs accordingly."                      The
order was sent to the County Attorney and to Voth's attorney. On
May 14, Voth's attorney moved to continue the June 9 trial.              The
motion was granted without objection.

       Trial in Justice Court was held on September 29, 1993.           Voth

was not personally present; however, his attorney appeared on his

behalf.    The minutes of the Justice Court indicate that, because

Voth did not personally appear, the Justice of the Peace waived the

jury   trial.     A bench trial took place after which the Justice Court

found Voth guilty of second offense DUI and imposed sentence.

       Immediately following sentencing, the Justice Court issued a

bench warrant for Voth's arrest for contempt on the grounds that

Voth "failed to appear at time of trial as ordered."              The   bench

warrant further ordered that, if apprehended, Voth "be admitted to

bail in the sum of $750.00" pending arraignment. An officer of the

Sheriff's Department arrested Voth on November 6, 1993.

       Voth posted $1015 in bail, and the Justice Court set a show

cause hearing for November 17.       The hearing was held on that date.

Both Voth and his attorney were present.        After   hearing   arguments

by the parties, the Justice Court found Voth guilty of contempt and

sentenced him to serve 24 hours in detention.           The Justice Court

stayed the sentence pending appeal to the District Court.
       Voth filed a petition for writ of certiorari requesting the

District Court to review the Justice Court's sentencing order in

the    contempt    proceedings.   Hearing was held on the petition on

March 1, 1994.        The District Court ordered the parties to submit

briefs and scheduled oral arguments for April 15, 1994. On May 16,

                                      4
1994,    following the April 15 hearing, the District Court filed an
order     and     memorandum      denying       Voth's     petition     for   writ   of
certiorari.        Voth filed notice of appeal from the District Court's

order on June 10, 1994.

        Did the District Court err by concluding that the Justice

Court properly held Voth in contempt of court for appearing at
trial through counsel rather than in person?

        The State contends that the Justice Court ordered Voth to
personally appear at trial.           When Voth did not personally appear,

the State asserts that the Justice Court properly issued a bench

warrant for his arrest pursuant to § 3-10-401, MCA, which provides

in part that a justice of the peace                      "may punish for contempt

persons     guilty of       the     following       acts     and   no    o t h e r   .

disobedience or resistance of a lawful order or process made or

issued by the justice . . . .'I                   According to the State, Voth

subsequently failed to present any reason for his non-attendance,

and the Justice Court properly held him in contempt.

        Voth contends that the Justice Court did not order him to

personally appear at trial, but instead merely ordered him to make

an appearance.         According to Voth,         he did make an appearance at

trial through his attorney of record who was authorized to act on

his     behalf.      Because the Justice Court did not order him to

personally        appear,   Voth asserts that he did not violate the

provisions of § 3-10-401, MCA, and therefore, was improperly held

in contempt.

        Section 46-16-120, MCA, provides:

                                            5
     In all cases in which the defendant is charged with a
     misdemeanor offense, the defendant may appear by counsel
     only I although the court may require the personal
     attendance of the defendant at any time.

This language clearly allows all persons charged with misdemeanor

offenses to appear through their attorney only unless the court

specifically requires their personal appearance.

     Examination of the record on appeal reveals that no order or

other statement of the presiding Justice of the Peace exists which

required the personal attendance of Voth at trial.    The    pre-printed
"Order for Conditions of Bail/Notice of Hearing/Trial" which Voth

signed on January 11,     1993,   ordered him to     "make   all court

appearances."    Immediately before Voth's signature,        the order

provided:   "I understand if I do not abide by        [the   conditions
listed above1 or appear for trial my bail/bond will be forfeited

and a warrant issued for my arrest."   On June 9, 1993, the Justice

Court issued an order resetting the trial date, and stated "you are

further notified that if you do not appear, the Court shall take

appropriate action and award costs according1y.l'

     At the hearing in District Court,        the State called the

presiding Justice of the Peace to the stand to testify regarding

the Voth case.   The Justice of the Peace stated:

     [BY THE DEPUTY COUNTY ATTORNEY]
     Q:    What did you tell Mr.       Voth   that   morning    on
     January llth, 1993?
      [BY THE JUSTICE OF THE PEACE]
     A:   At the time that he appeared, he had entered a not
     guilty plea to the charge against him and I had imposed
     conditions of bail.    Those conditions of bail included
     that he not leave the State of Montana, that he not use
     alcohol or drugs, that he post bail, obey all laws, make

                                  6
     all court appearances, keep the court informed of his
     current address at all times.   A pre-trial hearing was
     set and a jury trial date was set. And he was informed
     by me that he was required to appear at the trial and at
     the pre-trial hearing.

     While the Justice of Peace specifically ordered Voth to

appear,   he did not specifically order Voth to personally appear.

In proceedings      for a   misdemeanor      offense,    unless   the court

specifically    orders    the defendant to appear in person,            the

appearance of     the    defendant's       attorney at    trial   satisfies
§ 46-16-120, MCA.        We hold that the District Court erred by

concluding that the Justice Court properly held the defendant in

contempt.

     Reversed and remanded to the District Court for proceedings

consistent with this opinion.          ,




We concur:

           *
     Chief Justice
Justice James C. Nelson dissents as follows:

      I respectfully dissent.   AS a consequence of the hearing on
the   defendant's   petition for writ of certiorari, the District

Court, who was in the best position to judge the credibility of the

witnesses,    found that the Justice Court required, both orally and

in writing,    the attendance of the defendant at trial; that the

defendant offered no explanation for his absence from court at the

time of trial; and that, accordingly,      the Justice Court acted

within its jurisdiction in holding the defendant in contempt for

failing to obey a lawful order of the court.    Based on the record,
the District Judge's determination of the facts and his decision
based on those facts is entitled to be upheld.

       The Justice of the Peace testified that the defendant signed

the order and agreed to appear at trial.   Additionally, the Justice

of the Peace testified as follows:

      (By the Prosecutor):

      Q:   Just one more question, Your Honor, about the normal
      practice or the procedure in your justice court. Can you
      tell us what the normal procedure is in a DUI case, when
      a person asks for a trial in a DUI case?
                                 * * *

      Q:     Does the court always require a personal appearance?

      A:   The court always requires a personal appearance in
      a DUI case.



      (By Defense Counsel)

      Q:   Now, at the time in which you arraigned Mr. Voth and
      you filled out the order of conditions, I think in
      response to the State's questions you said that's a
      practice that you do with everyone?
     A:      With every DUI.

     Q.   So you require, regardless of what the statute says
     about defendants being able to appear by counsel only,
     you fill out an order that requires them to personally
     appear?  Is that what you're saying?
     A:       Yes,    that's the way we have been trained.

         From the foregoing testimony and the form order which the

defendant     signed,    acknowledging the necessity that he appear at

trial,    I conclude that there is substantial evidence in the record

to support the District Court's factual determination that the
Justice Court ordered the personal appearance of the defendant at

trial,     and for its legal conclusion that the Justice Court was

acting within its jurisdiction in holding the defendant in contempt

for failing to appear personally.          I would, accordingly, affirm the
District Court's denial of the defendant's petition for writ of

certiorari.
         Finally, I believe that it is also important to emphasize what

our opinion does not stand for.        While a misdemeanor defendant may,

unless his personal appearance is ordered by the court, appear by

counsel only,         at trial (§§ 46-16-120, MCA, and 46-16-122, MCA,)

that does not mean that he may also appear by counsel only, at

other proceedings where different statutes require the defendant's

actual presence in open court.         See,      for example, our decision in

State v.     Schneiderhan (1993), 261 Mont. 161, 862 P.2d 37, wherein

we held that 55         46-12-201, MCA, and 46-17-203, MCA, require the

defendant's          actual   appearance    in     court   for   arraignment.

Schneiderhan,        862 P.2d at page 39-40.
Justices Karla VI. Gray and Fred J. Weber concur in the foregoing
dissent.




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                                                          \
                                         March 23, 1995

                                  CERTIFICATE OF SERVICE

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

Karl P. See1
Attorney at Law
1705 W. College, Ste. A
Bozeman, MT 59715

Hon. Joseph P. Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620

A. Michael Salvagni, County Attorney
Jane Mersen, Deputy
615 S. 16th St.
Bozeman. MT 59715


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
