                           No. 86-502 and 86-528

                IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,                  NO. 86-502
                 Plaintiff and Respondent,
         -vs-
JEFFREY WAYMIRE,
              Defendant and Appellant.
                                NO. 86-528
CITY OF BILLINGS,
              Plaintiff and Respondent,
       -vs-
CHESTER METCALF,
              Defendant and Appellant.


APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
         For Appellants:
                Brad L. Arndorfer, Billings, Montana
         For Respondents:
                Hon. Mike Greely, Attorney General, Helena, Montana
                Dorothy McCarter, Asst. Atty. General, Helena
                Harold Hanser, County Attorney, Billings, Montana
                Gayle Stewart, Deputy County Atty., Billings


                                    Submitted on Briefs: Feb. 13, 1987
                                     Decided:      April 16, 1987
Filed:    APR 16 1987

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

      This is an appeal from the District Court of the
Thirteenth Judicial District, Yellowstone County, Montana.
The court dismissed an appeal from the Yellowstone justice
court and city court of Billings, Montana.     Defendants had
been driving under the influence of alcohol. We reverse and
remand.
      Defendant Jeffrey Waymire (Waymire) was arrested March
29, 1986.    He was issued a ticket for driving under the
influence of alcohol (second offense), and for driving with a
suspended or revoked license.
      There is a factual question whether he entered a plea
of guilty or the plea was entered for him by the justice
court. Accepting Waymire's version of the fact, he appeared
in justice court April 1, 1986, was advised of the charge,
the possible penalty, his right to remain silent, his right
to an attorney, and his right to a jury or non-jury trial.
He alleges he was then asked to enter a plea. He claims he
stated to the judge he did not know the plea he wanted to
enter and would exercise his right to remain silent.
Apparently a ten or fifteen minute argument ensued, and it is
Waymire's contention the justice court entered a guilty plea
and sentenced him, although he claims not to have entered a
plea. He received a sixty day sentence in the county jail.
      Waymire then contacted counsel who moved the justice
court to set aside the guilty plea and to allow the plea of
not guilty.    The justice court refused to set aside the
guilty plea.
      Waymire appealed the sentence and judgment to the
District Court for a trial de novo, two days after his
initial appearance in justice court. After several settings
of trial, to which he did not object, on September 23, 1986,
the State successfully moved to dismiss in the District Court
for lack of jurisdiction.     Thereafter, Waymire moved the
District Court to reconsider its order granting the motion to
dismiss, and provided a brief in support of the motion. The
District Court remanded the matter to justice court for
imposition of sentence. From these orders Waymire appeals.
       Defendant Chester Metcalf (Metcalf) was arrested for
driving under the influence of alcohol (second offense) or
driving with a blood alcohol content of .10 or more.       He
appeared in Billings city court, signed a waiver of rights,
and entered a plea of guilty.    His sentence was a fine of
$500, he was ordered to attend DUI court school, and was
sentenced to six months in jail with a portion to be
suspended upon completion of the school.
      Apparently not satisfied with his sentence, Metcalf
attempted to appeal to the District Court for a trial de
novo. As in Waymire's case, the District Court dismissed the
appeal for lack of jurisdiction.     Metcalf now appeals the
District Court's order and asks for a trial in the District
Court.
      The issue whether a guilty plea in justice court or
city court can be appealed to the District Court for a trial
de novo is one of first impression.      Authority from other
jurisdictions is conflicting. Courts which do not allow an
appeal reason that because a guilty plea is tantamount to a
confession of judgment, there is nothing from which an appeal
may be taken.     In those jurisdictions which do not have
general statutory or constitutional authority for appeal,
courts which have allowed an appeal following a guilty plea
do so primarily for policy reasons. Courts in jurisdictions
where a trial de novo is permitted base their decision on
general statutory authority regarding appeals, on      state
constitutional authority, or on policy.
           [TIhe argument may well be made that it
           is a travesty upon justice that a
           defendant who has, with full knowledge of
           his rights, pleaded guilty and been
           sentenced in one court may thereafter
           change his mind and insist on his case
           being heard in another tribunal.
Burris v. Davis (Ariz. 1935), 46 P.2d 1084, 1086.
      There is no constitutional right of appeal in Montana.
The pertinent statute in this case is 5 46-17-311, MCA. It
does not specifically allow appeal of a guilty plea, however.
      Section 5 46-17-311, MCA, states in pertinent part:
           (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.
           (2) A party may appeal to the district
           court by giving written notice of his
           intention to appeal within 10 days after
           judgment, except that the state may only
           appeal in the cases provided for in
           46-20-103.
The legislature made no distinction between a guilty plea and
a finding of guilt by the court or jury.
      We have held continuously for the last twenty-five
years that the District Court and the Supreme Court have no
appellate jurisdiction to review orders of the justice court.
An appeal to the District Court for a trial de novo is the
appellant's exclusive remedy for an appeal of justice court
proceedings.   Adair v. Lake County Justice Court (Mont.
19841, 692 P.2d 13, 14, 41 St.Rep. 2241, 2242. We adopt the
rationale of the Arizona court in Burris, supra, and hold
that from the standpoint of reason, justice and public
policy, appeals of a guilty plea in justice court or city
court may be tried anew in District Court provided they are
properly perfected.
      The statutory bounds of the District Court are not
exceeded by a decision based on sound public policy of
avoiding injustice. This holding does not give the District
Court original jurisdiction of a DUI case in violation of
§ 3-5-302, MCA.

      Therefore the judgment of the city court and of the
justice court may be heard anew by the District Court.




We concur:    ,- -
               ,--
Mr. Justice L. C. Gulbrandson dissenting.

     I respectfully dissent to the holding that "appeals of a
guilty plea in justice court or city court may be tried anew
in District Court. ..  "
     The   majority    has   adopted    the   rationale    of
Burris v. Davis (Ariz. 1935), 46 P.2d 1084 "from the
standpoint of reason, justice and public policy."
     Article 2, Section 24 of the Constitution of Arizona,
states   "In criminal prosecutions, the accused        shall
have ...    the right to appeal in - cases", (emphasis
                                      all
added).   Section 5153, R.C. (Arizona) 1928, states:    "The
defendant in any criminal action may appeal to the superior
court . . ."  (emphasis added). The Arizona Supreme Court in
Burris, 46 P.2d at 1086, in the year 1935, stated:

         On the other hand, it is a well-known fact
    that the presiding magistrates in justice and
    police courts are seldom skilled in the law; that
    proceedings therein are apt to be summary in their
    nature; and that although defendants, technically
    speaking, may have been advised as to their rights
    in the premises, they are not as a rule fully
    conversant therewith, so that to deny the right of
    appeal where a plea of guilty has been entered
    might in some cases work a grievous injustice.
         After considering the matter from all angles,
    and in the light of the language - -          of our
    constiTutiona1 and statutory provisions above
    quoted, we are o f t h e opinion that under the law of
    Arizona an appeal may be taken from a judgment in a
    criminal case, notwithstanding the fact that a plea
    of guilty has been entered by the defendant.


    While a few of our inferior magistrates are men
    trained in the law, the greater number of them are
    not and cannot be so prepared.   As a result, the
    proceedings in these inferior tribunals are
    naturally and necessarily more or less informal in
     their manner, and frequently conducted without
     strict observance of the rules of both procedural
     and substantive law.    In the vast majority of
     judgments of such tribunals the results, although
     arrived at informally, are probably in conformity
     with substantial justice. There are, however, at
     times cases where, with the best intentions upon
     the part of the presiding magistrate, an injustice
     has been done.


          For all these reasons, we are of the opinion
     that the public policy - - state, as indicated
                                of our
    A
     bv t h r ~ e o ~ lin the constitutional ~=vision and
          L     L     -
                        e
         the Legislature - - sections 'of - -
                             in the           - the C    Z
     above quoted, is best carried out by a holding that
     the right of appeal under circumstances like those
     appearing in this case does exist.          (Emphasis
     added. )
I agree with the holding of the Burris court, as of 1935, but
I do not agree that the State of Montana has, by constitution
or legislative action, a public policy as declared by the
majority herein.
     What may have been true in Arizona in 1935, regarding
untrained inferior magistrates, is certainly not indicative
of the quality of training received by Montana Justices of
the Peace and city judges in 1987.        Under S S 3-10-202,
3-10-203, and 3-11-204, MCA, those described officers are
required to attend annual training sessions, supervised by
the Montana Supreme Court, and I therefore believe the
adoption of the Burris court rationale to be in error.
     The Montana Supreme Court, although not ruling upon the
specified issue here, indicated doubt as to the appealability
of a judgment entered upon a guilty plea in justice court in
State v. La Rowe, 136 Mont. 591, 341 P.2d 906 (1959).
     Dissenting Justice Adair noted that a plea of guilty is
itself a conviction, and is conclusi~re, and further noted
that a voluntary guilty plea is a waiver of all the
defendant's rights, including the right to a trial at all.
     Dissenting Justice Bottomly noted that a voluntary plea
of guilty is a conviction but is different from a jury's
verdict and a judgment entered thereon in that there is no
statutory provision for an appeal from a judgment entered on
a guilty plea, thus leaving the district court with no
jurisdiction to entertain the purported appeal.
     To now hold that the defendant is entitled to a trial de
novo in district court when there has been no trial in
justice court, where there is no constitutional or statutory
language for an appeal from a judgment based on a guilty
plea, and where the declared public policy of Montana is to
protect defendants' rights through a supervised course of
training and education of justices of the peace and city
judges is to defy "reason, justice and public pop%y".
                                                 /'

     I would affirm the order of the

                                                                1
                                    Y

                                  Justice   ',
                                             /
                                             ,



                                         /'
