                                                     No.    86-47


                       J M THE SIJPREME COURT O F T H E S T A T E OF MONTANA


                                                          1986




S T A T E OF MONTANA,             ex r e l     . , GARY
ARFITT,




J U S T I C E COURT O F LAKE COUNTY, P o l s o n ,
M o n t a n a , CHAF.I,ES C. MEYEF, J u s t i c e of
the Peace,




O R I G I N A J PROCEEDING:



C O P N S E L OF RECORD:

               For P e t i t i o n e r :

                           Thomas A l a n Kragh,           Polson, M o n t a n a


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

                           Hon.    Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana




                                                          Submitted:     January 2 2 , 1 9 8 6
                                                            Decided:     February 1 3 , 1 9 8 6


                 FEB 1 3 1986
~i l e d . :




                                           -
                                                          Clerk
                             OPINION AND ORDER

Mr. Justice John C.           Sheehy delivered the Opi-nion of the
Court.
      The relator, Gary Abbitt, applies to this Court for
writ of supervisory control in the following circumstances:
         In cause no. 40-338-5 in Lake County Justice of the
Peace Court on December 19, 1985, Gary Abbitt, after having
been advised of his rights and waiving his right to counsel,
entered guilty pleas to the offenses of criminal possession
of dangerous drugs, a misdemeanor, and criminal possession of
drug paraphernalia, a misdemeanor.
      Justice of the Peace Charles C. Meyer imposed on Abbitt
sentences       of     6   months      on    each   count    to   be   served.
consecutively in the Lake County jail and in addition imposed
a $300 fine on each count.
      The defendant, who is indigent, requested counsel for
appeal, and the justice of the peace appointed a Lake County
public defender, Thomas A. Kragh to represent the defendant.
      Abbitt's        attorney      timely    filed a written notice of
appeal to the District Court, and the justice of the peace
imposed an appeal bond in the sum of $1,500.                      All parties
agree that Abbitt is indigent.                 The justice of the peace
denied the defendant ' s request to transmit the Justice Court
record    for    appeal     to   the    District Court without Abbltt
posting    the       appeal bond.       Abbitt      then   initiated in the
District Court, Twentieth District., Lake County, applications
for mandamus and for habeas corpus.                 Both applications were
denied by the District Court upon the authority of State v.
Rush (19741, 164 Mont. 81, 518 P.2d 1406.
      The holding of Rush must be overruled by us.                  The facts
in Bush were that the defendant had been convicted in the
Justice Court of Ravalli County of assault in the third
degree.     She was fined $150, and sentenced to 60 days in the
county jail which was suspended.                She filed a written notice
of   appeal     to   the District Court of             the Fourth Judicial
District for Ravalli County.                 She did not post an appeal
bond.     The Ravalli county attorney moved to have the appeal
dismissed on the grounds that the defendant's failure to post
a bond meant the appeal had not been perfected.                    The District
Court     granted    the   motion      to    dismiss    the    appeal.       The
dismissal of the appeal in the District Court was appealed to
this Court, the sole issue presented being whether an appeal
bond is necessary in a criminal case to perfect an appeal
from the Justice Court to the District Court, where the
defendant has been convicted.
        The court referred to then existing section 95-2009,
R.C.M.     (1947) which         allowed     a    defendant    in    a   criminal
proceedings in justice court to appeal to the District Court
by giving v~ritten notice of his intent to appeal within 10
days after judgment.            Nothing, however, in section 95-2009
requires a posting of a bond to perfect such an appeal.
        This Court relied on the revised comment of the Advisory
Commission to section 95-2009, R.C.M.               (1947), which indicated
that the burden is on a defendant in criminal proceedings to
perfect an appeal from the Justice Court and stated:                        "This
burden     is   sustained       when   the      defendant    has   posted    the
requisite bond       ...    "    - at 82, 518 P.2d at 1407.
                                 Id.                                        This
Court therefore implied from the commission comment that the
language of the comment indicated an intent to require bond
as a part of perfected appeal.
        Under our presently existing rules and statutes, it is
true that in an appeal of a judgment in a civil case from a
justice court to a district court, the undertaking on appeal
"may be in the form of an appeal bond or a deposit of money
in the sum equal to the amount of the judgment, including
costs. "     Rule   20, Montann   Justice Courts Rules of Civil
Procedure.
        In appeals from criminal convi.ctions in justice courts
however the                 statute is section 46-17-311, MCA,
which is i n words and figures as follows:
     Appeal. (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.

     (3)    Within 30 days, the entire record of the
     justice's or city court proceedings must be
     transferred to the district court or the appeal
     must be dismissed. It is the duty of the appellant
     to perfect the appeal.
     There is no statutory provision in an appeal from a
criminal conviction in the justice court for the filing of an
appeal bond.
     The holding in Bush, that in an appeal from a criminal
conviction in a justice court to the District Court an appeal
bond must be furnished is hereby expressly overruled.      There
is no such requirement in the law and Abbitt may not be
required to fur~ish an appeal bond in order to perfect his
appeal from the Justice Court to the District Court.
     Abbitt     is presently   incarcerated   in the Lake County
jail.      Abbitt has a right to be admitted to bail either in
the Justice Court before the appeal is perfected, or in the
Dj-strict Court after the appeal is perfected.       He must, of
course, q u a l i f y f o r b a i l i n accordance with t h e provisions of

section       46-9-103,         MCA,    a n d t-he amount o f             h i s b a i l must b e

d e t e r m i n e d i n a c c o r d a n c e w i t h s e c t i o n 46-9-301,       MCA.    A bail

bond h a s s t a t u t o r y a u t h o r i t y and i s n o t t o b e c o n f u s e d w i t h

a n a p p e a l bond,       f o r which t h e r e i s no s t a t u t o r y p r o v i s i o n .

        ACCORDINGLY,         I T I S ORDERED:

        1.    The C o u r t a c c e p t s j u r i s d i c t i o n     i n t h i s case f o r the

purpose o f t h e issuance of a w r i t of supervisory c o n t r o l t o

t h e J u s t i c e C o u r t o f Lake C o u n t y , Montana, C h a r l e s C .            Meyer,

J u s t i c e o f t h e Peace p r e s i d i n g .

        2.    Abbitt i s e n t i t l e d t o perfect h i s appeal without t h e

n e c e s s i t y o f f i l i n g a n a p p e a l bond a s r e q u i r e d by t h e j u s t i c e

court.

        3.    W i t h i n 30 d a y s from t h e i s s u a n c e o f t h i s o r d e r and

opinion, t h e e n t i r e record of t h e J u s t i c e ' s Court proceedings

r e l a t i n g t o A b b i t t must b e t r a n s f e r r e d t o t h e D i s t r i c t C o u r t ,

o r h i s a p p e a l must b e d i s m i s s e d .          It       s h a l l be t h e duty of

Abbitt t o perfect t h e appeal.                    S e c t i o n 46-17-311,       MCA.

        4.    A     copy     of     this     order        and    opinion        shall     be   and

constitute         and      serve      the   office       of     a    writ o f     supervisory

control       to        effectuate       the     orders         of      this     Court     herein

contained.

        5.    C o p i e s o f t h i s o p i n i o n and o r d e r s h a l l b e s e r v e d by

the    Clerk       of    this     C o u r t by   ordinary mail             upon     counsel of

record,        the       District        Court       of        the      Twentieth        Judicial

D i s t r i c t , County o f Lake, and upon t h e J u s t i c e C o u r t o f Lake

County,       Polson,       Montana,         Charles      C.     Meyer,        LTustice o f    the

Peace p r e s i d i n g .

        DATED t h i s /,?*day           of February,            1986.
                  Justice



We Concur:
             /C
