                                             No.    14287

                     I N THE SUPREME COURT O F T H E S T A T E O F MONTANA




S T A T E O F MONTANA e x r e l . ,
L E W I S AND CLARK COUNTY ATTORNEY
CHARLES A . GRAVELEY,
                                    Relator,



THE D I S T R I C T COURT O F THE F I R S T J U D I C I A L
D I S T R I C T O F THE S T A T E O F MONTANA e t a l . ,

                                           Respondents.



O R I G I N A L PROCEEDING:

C o u n s e l of R e c c r ? :

          For R e l a t o r :

                 C h a r l e s G r a v e l e y argued, C o u n t y A t t o r n e y ,   Helena,
                  Montana
                 A n n S m o y e r argued, H e l e n a , M o n t a n a

          For R e s p o n d e n t :

                 W i l l i a m D e e M o r r i s argued, H e l e n a ,    Montana



                                                   Submitted:        J u n e 1, 1 9 7 8

                                                     Decided:        JUL 2 1 1978
Filed:      JUL    a_a 1978
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.

           This matter arises on the application and petition of
relator, Charles A. Graveley, Lewis and Clark County Attorney,
filed in this Court on May 2, 1978, for a writ of supervisory
control.    Relator seeks to have Jack B. Gehring's bail bond
revoked and dismissed, to have him remanded to the custody of
the Sheriff of Lewis and Clark County, to have the appeal, in
Cause No. 14105, State v. Gehring (District Court Cause No.
4162), dismissed, and to have the appeal, also in Cause No. 14105,
Jack B. Gehring v. Rick Westlund (District Court Cause No. 42159),
filed and instituted as a separate appeal.
         State v. Jack B. Gehring involves Gehring's conviction
on July 20, 1977, by a jury, of four counts of intentionally
failing to pay income taxes or make, render, sign or verify
returns, or to supply any information, within the time required
by or under the provisions of Title 84, Chapter 49, R.C.M. 1947.
Gehring was given a two-year suspended sentence by the Honorable
Gordon R. Bennett, District Judge.    Thereafter, Gehring filed a
motion for new trial, which was heard and denied on October 4,
1977.   Gehring filed his'notice of appeal from his criminal con-
viction on December 19, 1977.    On January 3, 1978, the State
filed a motion to dismiss this appeal as untimely.
        On January 20, 1978, the District Court revoked Gehring's
suspended sentence, upon motion of the State, and ordered him
remanded to the custody of the Sheriff of Lewis and Clark County.
On February 6, 1978, Gehring filed a writ of habeas corpus in

District Court, Jack B. Gehring v. Rick Westlund.    The Honorable
Gordon R. Bennett declined jurisdiction of this matter and juris-
diction was assumed by the Honorable Robert J. Boyd.    A hearing
was held on the petition on February 17, 1978.    At that hearing,

Gehring retained as his counsel, William Dee Morris.    After
hearing the matter, the court dismissed the petition with leave
to file a new one.     An amended writ of habeas corpus was filed
on February 21, 1978.     A hearing was held on this writ on March
10, 1978.     The court denied the writ on April 7, 1978.   On April
11, 1978, Gehring filed his notice of appeal in this matter.
On April 25, 1978, the Honorable Robert J. Boyd approved a prop-
erty bail bond in which Gehring pledged all of his property.
Gehring is now freeon this bail bond, during his appeal.
           The sole issue before this Court is whether this Court
has jurisdiction to hear the criminal appeal, and the appeal
from the denial of the writ of habeas corpus, both appeals filed
in Cause No. 14105.
           The time limit for bringing an appeal in a criminal case
is specified in section 95-2405(e), R.C.M. 1947.     It reads:
           "An appeal from a judgment may be taken within
           sixty (60) days after its rendition."
In this case, Gehring's notice of appeal, on December 19, 1977,
was 152 days after entry of the sentencing order and 76 days
after the denial of his motion for a new trial.    Clearly, his
notice of appeal was not within the time limits of section 95-
       .
2405 (e)
           We have held under the former statute to section 95-
2405(e), which allowed the appeal to be filed within six months
after entry of judgment, that the filing of an appeal beyond
the statutory time limits deprives this Court of jurisdiction
to hear the appeal.     State v. Frodsham, (1961), 139 Mont. 222,
362 P.2d 413.    We have continued to apply this rule under sec-
tion 95-2405 (e).    Ketcham v. State, (1975), 167 Mont. 535,
541 P.2d 68.
           In regard to civil appeals, we have continually taken
the same approach.    We have held that if a notice of appeal
is not filed within the time limits of Rule 5, M.R.App.Civ.P.,
this Court is deprived of jurisdiction to hear the appeal.
Zell v. Zell, (1977),        Mont   .   ,   565 P.2d 311, 34 St.Rep.
492; Jackson v. Tinker, (1972), 161 Mont. 51, 504 P.2d 692;
First National Bank of Lewistown v. Fry, (1978),             Mont .

-1       -P.2d       ,   35 St.Rep. 276 (Decided 3/2/78).
          Since Gehring filed his notice of appeal more than 60
days after rendition of judgment, this Court is without juris-
diction to hear his appeal.     Accordingly, the appeal in State
v. Gehring (District Court Cause No. 4162) is dismissed.
          As for Gehring's appeal from the denial of his writ of
habeas corpus, this appeal must also be dismissed.         Although
no motion to dismiss has been made in regard to this appeal,
this Court has always held it has the power to dismiss an appeal,
on its own motion, where one does not properly lie.          State v.
Booth, (1958), 134 Mont. 235, 328 P.2d 1104.        Gill v. Rafn,
(1958), 133 Mont. 505, 326 P.2d 974.
          "Since the right to a review of [a habeas corpus]
          judgment or order is purely statutory, no appeal
          will lie if there is no provision therefor, and
          if a right of review is conferred by statute,
          it exists only in such cases and to the extent
          that the applicable statute provides." 39A
          C.J.S. Habeas Corpus S239. (Bracketed material
          added. )
          Under Montana law no appeal lies from the order deny-
ing a writ of habeas corpus in a proceeding criminal in nature,
where the issue to be determined is the freedom of petitioner,
or the legality of petitioner's detention.        State   v. Booth,
supra; State ex rel. Jackson v. Kennie, (1900), 24 Mont. 45,
60 P. 589; In re Pyle, (1925), 72 Mont. 494, 234 P. 254.          How-
ever, a right to appeal does exist from an order denying a writ
of habeas corpus in a case involving the custody of a minor
child.    State ex rel. Veach v. Veach, (1948), 122 Mont. 47, 195


          The statute that deals with the right to appeal in habeas
corpus proceedings which are criminal in nature is section 95-
2714, R.C.M. 1947, which specifically provides:
           "An appeal may be taken to the supreme court
           by the state from an order of judgment dis-
           charging the petitioner. The court may admit
           the petitioner to bail pending appeal. The
           appeal shall be taken in the same manner as
           in civil actions."
This statute, which was adopted in 1967, became law in light of
the rule announced in Booth, Kennie and Pyle.
           The reason for this rule, which does not permit an

appeal, is that the writ of habeas corpus is an original writ.
It is issuable out of either the District or Supreme Court.       As
that is the case, a denial of the writ is not res judicata.
The denial does not divest this Court of jurisdiction to grant
a second application.     State v. Booth, supra; In re Pyle, supra.
           In this case Gehring has appealed from the denial of
his writ of habeas corpus in which he challenged the legality
of his detention.    He has no right to appeal under those cir-
cumstances.    Thus, his appeal must be dismissed.
           Therefore, both the criminal appeal (District Court
Cause No. 4162) and the appeal in the habeas corpus proceeding
(District Court Cause No. 42159), appearing in Cause No. 14105,
are dismissed.    Relator's application for a writ of supervisory
control is denied.    Further, since Gehring is free on bail pend-
ing his appeal, and the appeal has been dismissed, the order
of the District Court of April 25, 1977, releasing him on bail
is vacated and he is remanded to the custody of the Sheriff of
Lewis and Clark County.
                             -----
                                      Chief Justice
       /
We conc'ur:
Mr. Justice Daniel J. Shea concurring with the Opinion of
the Court.

     On the basis of the law presently existing and because
defendant did not also petition this case for a writ of
certiorari, I am compelled to agree with the majority.    The
harsh results it works is exemplified by this case.
     I agree that our criminal code makes no provision for a
petitioner to appeal from a writ of habeas corpus that has
been denied and that, as a creature of statute, the right to
appeal therefrom is unauthorized for that reason.     I have

difficulty, however, concurring with the rationale set forth
by the majority opinion justifying the absence of such provision.
     This court's holdings on the issue of appealibility of a
denied writ of habeas corpus have all been grounded on the
inability of the Court to permit appeal where none was provided
for by the legislature; and further, that as a matter of
procedure such denial was not res judicata, so a second appli-
cation for the writ could be instituted in this Court.    The
frequently quoted origin of the rationale is contained in
State v. Kennie (1900), 24 Mont. 45, 60 P. 589.     Under the
procedural facts of that case however, the Court acknowledged
by way of dicta that certiorari instituted concurrently with
a writ of habeas corpus would allow review of the lower court
proceedings.   With a writ of certiorari, the Court sits in a
different posture, examining the proceeding and judgment or

order and taking appropriate action.   As noted by Chief Justice
Brantley, "It is not uncommon for this writ to be used in this
way, where it is sought to set aside a conviction in summary
proceedings before a justice of the peace where there is no
appeal."   Kennie, 24 Mont. 52.   This coupling of writs seems
to be a complicated means of obtaining review.    Enactment of

a statutory provision enabling review of a denied writ of habeas
corpus would be preferable.     Indeed, an overwhelming majority
of jurisdictions have done precisely that.     - 39A C.J.S.
                                               See,
Habeas Corpus S 2 3 8 .
      Our legislature has provided for review of writ of habeas
corpus proceedings resulting in discharge of the petitioner
from custody.     Section 95-2714, R.C.M. 1947.   Provision is
also made for denied writs of habeas corpus in civil matters.
Rule l(a), M.R.App.Civ.P.     These provisions were promulgated
notwithstanding the fact that as an original writ, denial of
such writ was not res judicata and therefore the Court was
not divested of jurisdiction for a second application.     I find
no reason for distinguishing between a civil and criminal
matter in this respect.     Given the statutes, it is a sound
enough observation, but as a rule it has no rational justi-
fication, and works an injustice on those who have been
unsuccessful in the District Court.
      Even if defendant petitions this Court in an original
proceeding, undoubtedly he will have spent some time in jail
before the petition is filed and this Court can act.     It may
later be that defendant has no grounds for this Court to issue
a writ of habeas corpus, but if he were out on bail at least
he would not be languishing in a county jail that has long been
fit for use only as a temporary holding cell.
