author: JUSTICE TRIEWEILER

text:
    IN RE MARRIAGE OF JOSEPH R. NEVIN, II, Petitioner and Respondent, and SUSAN A. NEVIN, Respondent and Appellant.
    No. 97-069.
    Submitted on Briefs July 17, 1997.
    Decided September 22, 1997.
    54 St.Rep. 981. 945 P.2d 58.
    284 Mont. 468.

      For Appellant: Mark D. Parker; Parker Law Firm; Billings.
    For Respondent: Gregory R. Todd; Hanson, Roybal, Lee & Todd; Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Joseph R. Nevin, after his divorce from Susan A. Nevin, obtained an order from the District Court for the Thirteenth Judicial District in Yellowstone Comity which required Susan to show cause why she should not be held in contempt for refusing to allow Joseph to exercise visitation with their sons. After a hearing held in response to the order, the court held Susan in contempt for failing to allow visitation and failing to notify the court that custody and visitation were being disallowed. Susan purged the contempt by reinstating visitation. Susan appeals from the District Court’s contempt order and its finding that Susan has serious emotional problems. We affirm in part and reverse in part the judgment of the District Court.

The following issues are raised on appeal:

1. Did the District Court abuse its discretion when it held Susan in contempt for refusing to allow visitation?

2. Did the District court err when it found that Susan is a hysterical, distressed mother with serious emotional problems?

3. Did the District Court err when it denied Susan’s motion to modify custody?

FACTUAL BACKGROUND

On December 12,1994, the petitioner, Joseph Nevin, filed an action in the District Court for the Thirteenth Judicial District in Yellowstone County to dissolve his marriage to his wife, Susan. The parties entered into a separation agreement which awarded primary residential custody of the couple’s two minor children to Susan and gave Joseph reasonable rights of visitation. The final decree of dissolution, dated September 18,1995, incorporates the separation agreement.

After allegations of sexual abuse of the parties’ older son, Gabe, were reported, Susan took Gabe to a clinical psychologist who recommended that Susan temporarily interrupt visitation between Joseph and his sons until the situation could be further investigated. Susan did so in April 1996. Joseph responded by asking that Susan be held in contempt.

On October 15, 1996, Susan was ordered to show cause why she should not be held in contempt for her refusal to allow visitation pursuant to the decree of dissolution and separation agreement. Susan responded with a motion to modify custody in accordance with the recommendations of the psychologist. The hearing on Joseph’s motion to hold Susan in contempt was held on December 24, 1996. The court concluded that Susan was in contempt for “failing to notify the [c]ourt appropriately that custody and visitation were being cut off.” The court also found “Susan Nevin to be a hysterical, distressed mother with serious emotional problems of her own.” With regard to modification of the custody arrangement, the court held that “the Decree that was filed as of September [19] 95 shall remain in full force and effect.” The court further held that “Susan Nevin can be purged of the contempt provisions or contempt citations by following the provisions of the Decree beginning Saturday, December 28th in lieu of the Christmas holiday season and extending at least four days into January of 1997.” The court added that Susan’s punishment would be purged if she complied with the provisions for custody and visitation set forth in the decree of dissolution “from this day forward.” Susan complied with the judge’s order and the children have had visitation with Joseph since December 28,1996. Susan appeals from the findings of the District Court.

ISSUE 1

Did the District Court abuse its discretion when it held Susan in contempt for refusing to allow visitation?

We have held that although contempt orders are final and not reviewable on appeal, except by writ of certiorari, an exception is created for contempt orders in family law cases. See In re Marriage of Heath (1995), 272 Mont. 522, 527, 901 P.2d 590, 593. We have also held that “[a] defeated party’s compliance with the judgment renders his appeal moot only where the compliance makes the granting of effective relief by the appellate court impossible.” Montana Nat’l Bank of Roundup v. State Dep’t of Revenue (1975), 167 Mont. 429, 432-33, 539 P.2d 722, 724.

After the District Court held Susan in contempt on December 24, 1996, Susan purged herself of contempt by permitting Joseph to visit his sons. Susan has continued her compliance with the judge’s order since it was entered. If Susan denies visitation in the future, she is subject to no worse sanction because of the contempt order than she would be for violating the original decree of dissolution. In Woolf v. Evans (1994), 264 Mont. 480, 483, 872 P.2d 777, 779, we held that “[c]ontempt of court is a discretionary tool used to enforce compliance with a court’s decisions. The power to inflict punishment by contempt is necessary to preserve the dignity and authority of the court.” Woolf, 264 Mont. at 483, 872 P.2d at 779, (citing In re Marriage of Jacobson (1987), 228 Mont. 458, 464, 743 P.2d 1025, 1028).

In this case, the decision with which Susan must comply is first and foremost the original decree of dissolution and the incorporated separation agreement. Pursuant to the rule of law set forth in Woolf, a violation of the decree of dissolution subjects the violating party to a contempt citation. Therefore, the possibility of future contempt is present by the very nature of the decree of dissolution in this matter, regardless of the existence of the District Court’s later contempt order.

As we stated in Bank of Roundup, when a party complies with a judgment to such an extent that effective relief by an appellate court is impossible, that party’s appeal is moot. See Bank of Roundup, 167 Mont. at 432-33, 539 P.2d at 724. Therefore, because Susan complied with the District Court’s contempt order by reinstating visitation, we are not able to offer her any effective relief from that citation upon appeal. Nor are we able to effectively relieve Susan’s concern about that part of the contempt order which requires that she comply with the provisions of the decree of dissolution “from this day forward” or be held in contempt. The very existence of the original decree of dissolution subjects her to this same potential sanction. Therefore, pursuant to the law as set forth in Bank of Roundup, 167 Mont. at 432-33, 539 P.2d at 724, we conclude that the issue of Susan’s contempt is moot.

ISSUE 2

Did the District court err when it found that Susan is a hysterical, distressed mother with serious emotional problems?

The standard of review of a district court’s findings and conclusions is whether substantial evidence supports those findings and conclusions. See State v. Sheppard (1995), 270 Mont. 122, 127, 890 P.2d 754, 757. Substantial evidence is the amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. See Swandal Ranch Co. v. Hunt (1996), 276 Mont. 229, 235, 915 P.2d 840, 844. In this case, other than the District Court’s personal impressions, there was no evidence to support the District Court’s finding that Susan is a hysterical, distressed mother with serious emotional problems. These sorts of findings, when made part of a permanent record in a legal proceeding, necessarily require evidence in the form of a qualified professional opinion. We therefore conclude that the District Court erred by stating that finding on the record. Accordingly, we amend the District Court’s findings to strike the court’s statement that Susan is “a hysterical, distressed mother with serious emotional problems of her own.”

ISSUE 3

Did the District Court err when it denied Susan’s motion to modify custody?

We review a district court’s findings related to custody or visitation modification to determine whether those findings are clearly erroneous. See In re Marriage of Elser (1995), 271 Mont. 265, 270, 895 P.2d 619, 622 (citing In re Marriage of Johnson (1994), 266 Mont. 158, 166, 879 P.2d 689, 694). In Elser, we said that “[flindings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court’s review of the record convinces it that a mistake has been made.” Elser, 271 Mont. at 270, 895 P.2d at 622. If the findings on which its decision are based are not clearly erroneous, this Court will reverse a district court’s decision regarding modification of custody or visitation only when an abuse of discretion is demonstrated. See Elser, 271 Mont. at 270, 895 P.2d at 622 (citing In re Marriage of Hunt (1994), 264 Mont. 159, 164, 870 P.2d 720, 723).

Since Susan presented no substantial evidence in support of modification, we conclude that the District Court’s finding regarding modification is not clearly erroneous and that it did not abuse its discretion when it refused to modify the custody arrangement between Susan and Joseph.

The judgment of the District Court is, therefore, affirmed in part and reversed in part.

JUSTICES REGNIER, NELSON, HUNT and GRAY concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    ROBERT L. JOHNSON, Plaintiff and Appellant, v. EAGLES LODGE AERIE 3913, RALPH DUCHARME, Trustee, and ROBERT EUGENE ADAMS, Defendants and Respondents.
    No. 97-100.
    Submitted on Briefs May 22, 1997.
    Rehearing Denied October 21, 1997.
    Decided September 22, 1997.
    54 St.Rep. 984. 945 P.2d 62.
    284 Mont. 474.

      For Appellant: Matthew H. O’Neill, French, Mercer, Grainey & O’Neill, Poison.
    For Respondent: Susan P. Roy, Lucy T. France, Garlington, Lohn & Robinson, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the District Court of the Twentieth Judicial District, Lake County. Appellant Robert L. Johnson (Johnson) appeals from the order setting aside default and default judgment. We reverse.

The following issues are presented on appeal:

1. Did the District Court lose jurisdiction by failing to rule within 60 days of the date the motion to set aside the default judgment was filed?

2. Was the motion to set aside default and default judgment deficient as a matter of law, because the defendants failed to attach an affidavit of merits or answer?

3. Did the District Court abuse its discretion when it set aside the default judgment based upon mistake and excusable neglect?

FACTUAL AND PROCEDURAL BACKGROUND

Johnson is a member of Eagles Lodge Aerie #3913. In June 1994, he and other members of the lodge volunteered to clean the premises during a spring clean-up day. Johnson was cleaning shingles on a gazebo over the bar, while standing near the top of a twelve-foot ladder steadied by another lodge member, Respondent Robert Eugene Adams (Adams). Adams allegedly walked away from the ladder without informing Johnson. Johnson became unsteady, and the ladder fell backwards. The ladder caught his foot, and Johnson fell twelve feet landing head first on the floor.

The Eagles Lodge was insured at the time by Capitol Indemnity Corporation (Capitol). It had obtained its insurance through Bishop Insurance Agency (Bishop) in Poison. Johnson took his medical bills to Bishop and requested that the insurance company pay them. Bishop notified Capitol, which ultimately denied the claim.

On May 30, 1995, Johnson’s counsel telephoned the claims examiner for Capitol and told them a lawsuit would be filed shortly. He requested that Capitol either accept service of process on behalf of the insureds or identify local counsel to accept service of process. Capitol denied the request.

The next day, May 31, 1995, Capitol wrote a letter to the Eagles Lodge and requested that it notify either Capitol or Montana Claims Service, who had investigated the claim on Capitol’s behalf, if it received a complaint and summons.

Johnson filed suit on June 5, 1996, and served the summons and complaint on Eagles Lodge on June 13,1996, and on Adams on June 17, 1996. Respondent Ralph Ducharme (Ducharme), the trustee for Eagles Lodge, took the complaint to its insurance agent at Bishop, who showed him what was believed to be the most current policy. Ducharme returned to the Lodge and located what he believed to be the same policy that he was shown earlier at Bishop. However, the policy he located was actually an old policy that Eagles Lodge had with Casualty Indemnity Exchange (C.I.E.); it was not the current policy Eagles Lodge had with Capitol. Ducharme forwarded the summons and complaint to C.I.E. Adams, who had also been served, telephoned Ducharme who assured him that the matter had been forwarded to the insurance company and that everything was being taken care of.

No one answered the complaint and no one made a notice of appearance on behalf of either Eagles Lodge or Adams. The District Court subsequently entered default in favor of Johnson on July 17, 1996, and default judgment on August 21, 1996. The judgment was in the amount of $97,494.13. Prior to requesting entry of default and default judgment, Johnson’s attorney had contacted an attorney who previously had represented Eagles Lodge in other matters. That attorney stated he would not be appearing on behalf of Eagles Lodge.

At some point, Ducharme received a letter from C.I.E., notifying him that it was in receivership. Ducharme took that letter and a copy of the default judgment to the same attorney with whom Johnson’s attorney had spoken. On September 17, 1996, the attorney wrote a letter to Bishop informing it of the default judgment and blaming it for allegedly placing insurance with an insurance company that was in receivership.

On October 8, 1996, Employers Reinsurance Corporation, the errors and omissions carrier for Bishop, notified Capitol that default judgment had been entered. Capitol claims that this was the first notice it received that suit had been filed. At this point, it became clear that Ducharme had sent the summons and complaint to the wrong insurance company. Capitol hired counsel to represent the defendants. On October 21,1996, it filed a motion on behalf of Eagles Lodge and Adams to set aside the default and default judgment. The brief in support of that motion was filed on October 25, 1996.

On October 24, 1996, Johnson filed a motion to disqualify the counsel Capitol had retained, because District Court Judge McNeil, who had entered default judgment, was related to an attorney in that attorney's law firm. On November 14, 1996, Judge McNeil recused himself from the case, and on November 15, 1996, District Court Judge Henson assumed jurisdiction. On November 27,1996, District Court Judge Henson entered an order ruling that the motion to disqualify was thus moot.

Johnson had filed his brief in opposition to the motion to set aside the default judgment on November 12, 1996. After Judge Henson assumed jurisdiction, the reply brief in support of the motion was filed on November 29, 1996.

The District Court set oral argument on the case for December 17, 1996. On January 3,1997, the District Court entered an order setting aside the default judgment. The order had been signed on December 31, 1996. It is from that order that Johnson appeals.

DISCUSSION

Did the District Court lose jurisdiction by failing to rule within 60 days of the date the motion to set aside the default judgment was filed?

A court has authority to set aside default judgment in accordance with Rule 60(b), M.R.Civ.R See Rule 55(c), M.R.Civ.R The rules expressly require the court to rule on that motion within 60 days from the date the motion is filed, or the motion is deemed denied. Rule 60(c), M.R.Civ.P. states:

Motions provided by subdivision (b) of this rule shall be determined within the times provided by Rule 59 in the case of motions for new trials and amendment of judgment and if the court shall fail to rule on the motion within the 60 day period, the motion shall be deemed denied.

Rule 59(d), M.R.Civ.R also provides in part:

If the court shall fail to rule on a motion for a new trial within 60 days from the time the motion is filed, the motion shall, at the expiration of said period, be deemed denied.

The time limits provided for in these rules are mandatory and are strictly enforced. Lerum v. Logue (1982), 198 Mont. 194, 196, 645 P.2d 418, 419. In Bechhold v. Chacon (1991), 248 Mont. Ill, 809 P.2d 586, for example, the district court had entered an order dismissing a marital dissolution proceeding. Subsequently, it set aside that order, and entered a dissolution decree. We held that the district court had no jurisdiction to set aside the earlier order of dismissal, because it failed to rule on the motion within the time limits proscribed by Rule 60(c), M.R.Civ.P. Accordingly, this Court reinstated the order of dismissal. Bechhold, 809 P.2d at 588. Similarly, in In re Marriage of Miller (1989), 238 Mont. 108, 776 P.2d 1218, we held that the district court lost jurisdiction to entertain a motion to set aside a judgment of a dissolution when it failed to rule on the motion within the time period proscribed by Rules 60(c) and 59(d), M.R.Civ.P. Hence, the order entered by the district court after it lost jurisdiction was invalid. In re Marriage of Miller, 776 P.2d at 1220.

In this case, the motion to set aside the default judgment was filed on October 21,1996. The court had sixty days or until December 20, 1996, to rule on that motion. However, it did not enter an order until January 3, 1997. By that time, the motion was deemed denied, and the District Court had lost jurisdiction. Accordingly, its order setting aside default judgment is invalid.

Respondents counter that the 60 day time limit did not begin to run until Judge Henson assumed jurisdiction of this case on November 15,1996. They argue that the motion should not be deemed “filed” for purposes of Rules 59(d) and 60(c) until the date the new judge received it. Respondents cite no authority for this argument. Moreover, this position contravenes the express terms of Rule 5(e), M.R.Civ.P., which provides that a paper is filed when it is filed with the clerk of court (unless a judge permits the paper to be filed with the judge, in which case the judge notes the filing date and then transmits it to the clerk of court.) Rule 5(e) does not provide that a paper is filed on the date a judge, whether new to the case or not, actually obtains it. In this case, respondents filed the motion with the clerk of court on October 21,1996. Under Montana’s rules, that is the filing date for purposes of Rules 59(d) and 60(c).

Respondents next argue that for policy reasons the 60 day time limit should not begin to run until Judge Henson assumed jurisdiction of the case. They contend that Johnson unnecessarily delayed proceedings by filing a motion to disqualify their attorney. They argue that it is conceivable that in some cases a new judge who assumes jurisdiction of a case after a prior judge has recused himself may have only as little as one day to rule on the motion. It may be impossible in such a case for the court to rule within 60 days. According to respondents, enforcing the 60 day time period will thus encourage counsel to file meritless motions to delay proceedings.

No such delay occurred in this case, however. Judge Henson assumed jurisdiction on November 15, before the parties had even finished briefing the motion to set aside the default judgment. Indeed, respondents did not file their reply brief until November 29, 1996. Even after hearing oral arguments on December 17,1996, the District Court still had several days to enter its order. This Court will not address hypothetical factual situations such as those presented in respondent’s scenario.

Finally, respondents cite Maulding v. Hardman (1993), 257 Mont. 18, 847 P.2d 292, and urge this Court to consider evidence in the record and set aside default judgment even if the District Court did lose jurisdiction. Respondent’s reliance on Maulding is misplaced. In that case, both parties conceded that the district court lost jurisdiction to decide a motion to set aside default judgment when the court failed to timely decide the motion. Maulding, 847 P.2d at 295. However, once the motion was deemed denied by operation of the rules, Hardman, who sought to have the default judgment set aside, timely appealed that denial to this Court. Maulding, 847 P.2d at 295. Hardman had thus preserved the merits of his motion. In the interest of justice and judicial economy, this Court agreed to consider evidence presented at a hearing held after the district court lost jurisdiction. Maulding, 847 P.2d at 296.

In this case, on the other hand, respondents did not file an appeal. Once their motion was deemed denied after December 20, 1996, it was incumbent upon them to appeal the denial in order to preserve the issue as to whether the default judgment should be set aside. They did not do so, and this Court will not consider the merits of the dispute.

Once again, we renew our warning that counsel must carefully follow Rules 59 and 60. Those rules contain mandatory jurisdictional time limitations, to which we strictly adhere. As we stated fifteen years ago in Wallinder v. Lagerquist (1982), 201 Mont. 212, 219, 653 P.2d 840, 843:

Warning. We renew the warning previously stated in recent cases by this Court. Attorneys and District Combs must keep in mind the very real risks involved in the application of Rules 59 and 60, M.R.Civ.P.... As demonstrated here, a failure to comply results in a loss of jurisdiction and inability of the trial comb and this Court to consider questions raised on the merits.

Because we hold that the District Court failed to rule within 60 days of the date the motion was filed, the matter was deemed denied. The District Court had no jurisdiction to enter its January 3, 1997 order. Having so ruled, we need not discuss the remaining issues raised by Johnson. We reverse and reinstate the default judgment entered August 21,1996.

JUSTICES GRAY, NELSON, REGNIER and LEAPHART concur.


author: JUSTICE NELSON

text:
    GREGORY LLOYD INGRAHAM, Petitioner, v. STATE OF MONTANA, Respondent.
    No. 97-241.
    Decided July 24, 1997.
    54 St.Rep. 782. 945 P.2d 19.
    284 Mont. 481.
   OPINION AND ORDER

Gregory Lloyd Ingraham (Ingraham) is incarcerated at the Montana State Prison as a result of his conviction on July 19,1996, of the offenses of negligent homicide, a felony, in violation of § 45-5-104(1), MCA; criminal endangerment, a felony, in violation of § 45-5-207(1), MCA; and criminal trespass to property, a misdemeanor, in violation of § 45-6-203(1), MCA. He had consumed alcohol prior to the acts giving rise to the convictions. Ingraham presently is before this Court on his application for writ of habeas corpus, requesting review of the denial by the Twentieth Judicial District Court, Lake County, of his motion to continue bond pending appeal.

The sole issue before us is whether the District Court abused its discretion in denying Ingraham’s motion to continue bond pending appeal.

The procedural steps via which Ingraham’s request is before this Court have been detailed in a number of previous orders by the Court and by Justice Terry N. Trieweiler. Those orders, entered in this cause number and in cause numbers 97-076 and 97-271, recount in detail Ingraham’s efforts — vis-a-vis habeas corpus and appeal — to obtain review of the District Court’s denial of his motion to continue bond pending appeal; we need not recount those details here. Suffice it to say that, after months of procedural entanglements, the matter is now before this Court for review pursuant to Ingraham’s application for writ of habeas corpus.

Ingraham had been admitted to bail pending trial after being charged with the three offenses referenced above on October 17,1995. The District Court continued his bond pending sentencing after the July 19, 1996, jury verdicts finding him guilty of the two felony and one misdemeanor offenses. The District Court sentenced Ingraham in open court on November 18, 1996, and remanded him to the custody of the Lake County Sheriff for transport to the Montana State Prison. The court subsequently entered a written judgment and commitment.

Immediately after sentencing, Ingraham moved the District Court for continuation of bond pending appeal. The District Court heard oral argument on the motion on December 3, 1996, and Ingraham and the State of Montana (State) filed proposed findings of fact and conclusions of law. Thereafter, the District Court entered its findings of fact, conclusions of law and order denying the motion to continue bond pending appeal based on its determination that it was unable to find that, if released, Ingraham was not likely to pose a danger to the safety of any person or the community.

The availability of bail pending both trial and appeal is governed by statute in Montana. With regard to bail pending appeal, § 46-9-107, MCA, provides:

The court shall order the detention of a defendant found guilty of an offense who is awaiting imposition or execution of sentence or a revocation hearing or who has filed an appeal unless the court finds that, if released, the defendant is not likely to flee or pose a danger to the safety of any person or the community.

In other words, a convicted criminal defendant is not to be admitted to bail unless the trial court finds that he or she is not likely to either flee or pose a danger. We review a district court’s decision denying an application for bail pending appeal for abuse of discretion. Moore v. McCormick (1993), 260 Mont. 305, 306, 858 P.2d 1254, 1255.

In this case, the District Court entered findings of fact and, on the basis of those findings, determined that it was unable to find that, if released, Ingraham was not likely to pose a danger to the safety of any person or the community. Ingraham contends that the court’s ultimate determination is an abuse of discretion because it is not supported by the evidence and findings as a whole. We observe at the outset that none of the District Court’s purely factual findings are challenged as unsupported by the record. Ingraham challenges only the weight given to, or the inferences drawn from, certain of those findings. Specifically, he contends that the District Court’s focus on matters predating alcohol treatment Ingraham received at the Menninger Clinic (Menninger) after his convictions and its failure to give more weight to a report by Dr. Richard Irons (Dr. Irons) from Menninger constituted abuses of discretion.

Before addressing the specific contentions advanced by Ingraham, it is appropriate to review undisputed findings of fact relating to the District Court’s denial of his motion to continue bail pending appeal. Ingraham was involved in a fatal vehicle accident, prior to which he had been drinking, in 1993; no charges were brought against him as a result of the accident. In July of 1995, he was involved in an alcohol-related domestic violence incident which resulted in a criminal charge to which he subsequently pled guilty. As a result of the charge, Ingraham spent a number of days in the Talbott Marsh Treatment Center (Talbott Marsh) in Georgia in early August. On August 9, 1995, Talbott Marsh recommended that he abstain from alcohol and seek treatment from Menninger.

In October of 1995, Ingraham was charged in the instant case with the offenses of negligent homicide, criminal endangerment and criminal trespass to property arising out of a fatal vehicle accident prior to which he had been drinking. He had not followed the Marsh Talbott recommendations that he abstain from alcohol and seek treatment at Menninger prior to the accident. He was released on bond on condition that he not drink alcohol.

During the several weeks following his release on bond pending trial, Ingraham consumed alcohol daily while staying with friends. In February of 1996, he apparently drank prior to picking up a date and drove in a manner that frightened her. He continued to drink wine throughout the evening and the date felt he had had a sufficient quantity of alcohol to necessitate her operating his vehicle when they left the restaurant where they had dinner. In April of 1996, two Shopko pharmacy employees noticed the odor of alcohol on Ingraham’s breath when he picked up prescriptions there.

Ingraham’s trial in the instant case occurred in July of 1996. He was found guilty on July 19, 1996, and bond was continued, on the same conditions, pending sentencing.

In August, the State received police reports from the Missoula Police Department documenting incidents of Ingraham drinking while subject to bond requirements. During the initial interview for preparation of the presentence investigation report required by statute, Ingraham told the probation officer that, since the accident, his only consumption of alcohol was one beer the following day. During a later interview, he was confronted with the statements of his dinner date and admitted that he had consumed wine during that date in February of 1996.

Ingraham was treated at Menninger for alcohol dependency and bipolar affective disorder, type II, from September 9 through November 1,1996. In a report to Ingraham’s counsel for purposes of sentencing, Menninger’s Dr. Irons reported that, during Ingraham’s time there, he came to develop what the treatment team believed was genuine remorse for his lack of responsibility in operating a vehicle while under the influence of alcohol. Based on its experience with him, the team did not see him as a danger to the public “if he is not under the influence of alcohol while driving a motor vehicle, and compliant with psychotropic medications.” Dr. Irons also believed Ingraham would comply with measures that could be put in place to assure abstinence from alcohol and other mood-altering substances.

On the face of it, the aboveme'ntioned facts are sufficient to support the District Court’s determination that it could not find that, if released on bond, Ingraham was not likely to pose a danger to any person or to the community. The facts demonstrate serious incidents involving alcohol consumption by Ingraham prior to this case; a failure to abstain from alcohol and seek treatment even after being advised to do so by Talbott Marsh; an alcohol-related fatal vehicle accident which resulted in the charges on which this case is based; a number of violations of the bond condition that he not consume alcohol; and his initial falsehood to the probation officer writing the presentence report that he had not consumed any alcohol since the day after the accident.

Against this backdrop, Ingraham contends that his treatment at Menninger, after his conviction, and Dr. Irons’ report are more reliable indicators of his present condition and risk if released on bond pending appeal than his pretreatment behavior. Stated differently, he asserts that the District Court was compelled to give more weight to the facts that he sought treatment after conviction and that Dr. Irons believed he was not a risk than to the other evidence before it. We disagree.

“Discretion” connotes that part of the judicial function which decides questions according to the particular circumstances of the case, uncontrolled by fixed rules of law. State ex rel. Leach v. Visser (1988), 234 Mont. 438, 447, 767 P.2d 858, 863 (citation omitted). An abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason. In Matter of Investigative Records of City of Columbus Pol. Dept. (1995), 272 Mont. 486, 488, 901 P.2d 565, 567 (citation omitted). In addressing discretionary matters such as a motion for bond pending appeal, a court’s application of conscientious judgment necessarily involves weighing evidence and making reasonable inferences therefrom in order to assess a likelihood of danger. Thus, the question for this Court is not whether we would have reached the same decision but, rather, whether the District Court abused its discretion in reaching the decision to deny Ingraham’s motion for bond pending appeal.

On this record, it is clear that the District Court could have chosen to give additional weight to the Menninger treatment and Dr. Irons’ report as the most recent evidence regarding Ingraham and his potential risk of danger to others if released pending appeal. The District Court was not required to do so, however, and this is especially true given the equivocal nature of Dr. Irons’ report. As noted above, the treatment team did not see Ingraham as a danger to the public “if he is not under the influence of alcohol while driving a motor vehicle. ...” (Emphasis added.) Moreover, Dr. Irons “believed” that Ingraham would be compliant with any measures put in place to assure Ingraham’s abstinence from alcohol.

While Ingraham may well have significant rehabilitation potential and might — if and when given the chance — comply with requirements that he abstain from alcohol, neither Dr. Irons’ report nor any evidentiary showing can guarantee such results in advance. He clearly did not abstain during the time such abstention was a court-ordered condition of bail. Nor is the treatment team’s view that Ingraham is not a risk to the public “if’ he does not drive a vehicle while under the influence of alcohol necessarily comforting given Ingraham’s alcohol-related history. Given the record in this case, we conclude that the District Court did not abuse its discretion in refusing to give more weight to the Menninger treatment and report than to Ingraham’s pre-Menninger conduct. To conclude otherwise would force trial courts to grant bond pending appeal in every case where a convicted defendant obtained a generally supportive post-trial report based on subjective beliefs and predictions of future behavior. Neither § 46-9-107, MCA, nor our abuse of discretion standard contemplates such a requirement.

Ingraham also contends that the District Court erroneously abstracted a risk of present danger from the alcohol-related domestic violence incident which occurred in July of 1995. It is true that the court mentioned that incident several times in its findings of fact. Some of those references were in a purely historical context and in relation to Ingraham’s resulting trip to Marsh Talbott and the Marsh Talbott recommendations that Ingraham abstain from alcohol and seek treatment at Menninger, which recommendations were not followed in the two months after they were made and before the fatal alcohol-related accident underlying the present proceedings. In assessing the risk of danger to persons and the community if Ingraham were released on bond pending appeal, however, the court clearly gave more weight to Ingraham’s several violations of the bond condition that he abstain from alcohol and to his posttrial falsehood to the probation officer about drinking while released on bond than it gave to the domestic violence incident.

Ingraham also argues briefly that the bond condition that he abstain from alcohol entirely during his release on bond pending trial and sentencing was unconstitutional and that violation of such an unconstitutional bond condition cannot constitute a proper basis for denying bond on appeal. It does not appear that he raised this — or any other — objection to the abstention condition at the time it was imposed, or at any time thereafter, in the District Court. Indeed, his proposed findings and conclusions regarding his motion for bond pending appeal propose that the same abstention condition be continued. Ingraham having waived this objection by failing to raise it in the District Court (see § 46-20-104(2), MCA), we decline to address this argument further.

Finally, Ingraham contends that, because at least one issue in his pending appeal creates a strong likelihood that this Court will reverse his convictions, equity and fairness require that he be released on bond pending appeal. We disagree. As discussed above, § 46-9-107, MCA, governs the availability of bond pending appeal. Nothing in that statute refers to the likelihood of success on appeal. Nor does Ingraham cite to any authority under which the likelihood of success on appeal is an appropriate consideration in either an initial determination of a motion for bond pending appeal or a review by this Court of a district court’s initial determination. Moreover, adopting Ingraham’s approach would require this Court to determine in advance of the arrival of the appeal whether there is a likelihood of success in the appeal and, if so, the magnitude of that likelihood. Not only is such a determination a practical impossibility, it would necessitate an advisory opinion by this Court. We do not issue advisory opinions. State ex rel. Fletcher v. District Court (1993), 260 Mont. 410, 419, 859 P.2d 992, 997.

We conclude that the District Court did not abuse its discretion in denying Ingraham’s motion for continuation of bond pending appeal and, accordingly,

IT IS ORDERED that Ingraham’s application for writ of habeas corpus is DENIED.

DATED this 24th day of July, 1997.

/S/KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/Si WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

CHIEF JUSTICE TURNAGE has recused himself from this matter.

JUSTICE NELSON

specially concurs.

I concur fully in our opinion and order. I write separately only to address the “procedural entanglements” which preceded this decision. As stated, our orders in cause numbers 97-076 and 97-271 detail the tangled and lengthy history of Ingraham’s attempts to obtain our review of the trial court’s denial of his motion to continue bond pending appeal. These procedural contortions arose for a very simple reason. This Court has no statutory authority to review a district court’s denial of bail pending appeal either by direct appeal or via a petition for writ of habeas corpus. While our decisions in Bretz v. Sheriff of Lewis and Clark County (1975), 167 Mont. 363, 539 P.2d 1191, and Moore v. McCormick (1993), 260 Mont. 305, 858 P.2d 1254, appear to provide authority for what we are doing here, in truth, that authority or, rather, our lack of authority, was never at issue in either of those two cases. In the case at bar we have disposed of Ingraham’s habeas corpus petition by reviewing the trial court record and the court’s decision for abuse of discretion simply because both the Defendant and the State have agreed that we should proceed in that fashion — not because the law authorizes us to do so.

Under § 3-2-212, MCA, and under the statutory scheme set out at Title 46, Chapter 22 of the Montana Code this Court and individual members of this Court can — and, in my view, must — deal with habeas corpus petitions as original proceedings when those are filed here. In situations such as the one at issue, our decision to grant or deny habeas relief must, of necessity, be based on a factual record. In the context of an original proceeding we have only two ways to accomplish that. Either we develop our own record by holding an evidentiary hearing ourselves or we must assign that task to another district court. The latter approach will invariably be necessary, as this Court, as an appellate court, is not structurally set up to conduct an evidentiary hearing. Unfortunately, as this case ably demonstrates, having to deal with habeas petitions in this fashion is highly inefficient, time consuming, wasteful of judicial resources and ill serves the accused, the courts or the criminal justice system.

As both Ingraham and the State appear to concede, appellate review of the trial court record and decision to deny bail pending appeal for abuse of discretion is the obvious best approach in cases such as this. The habeas corpus statutes should be amended by the next legislature to provide authority for this procedure to the end that the fiasco which has characterized this case will not again be repeated.


text:
    STATE OF MONTANA, Plaintiff and Appellant, v. RAY LEWIS BOWLES, Defendant and Respondent.
    No. 96-418.
    Submitted on Briefs March 20, 1997.
    Decided September 22, 1997.
    54 St.Rep. 962. 947 P.2d 52.
    284 Mont. 490.

      For Appellant: Tara DePuy, Park County Attorney, Livingston; Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena.
    For Respondent: Jennifer Wendt Bordy, Bozeman.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Sixth Judicial District Court, Park County. On June 11, 1996, the District Court entered an order expunging a 1977 DUI conviction from Defendant Bowles’ record and dismissing a fourth offense DUI felony charge against him. From this order, the State appeals and Defendant Bowles cross appeals. We affirm.

We address the following issue raised on appeal:

1. Did the District Court err in concluding that Defendant Bowles’ 1977 DUI conviction may not be used to support the charge of felony fourth-offense DUI?

Defendant Bowles also raises two issues by way of cross appeal:

2. Was properjudicial determination of probable cause made by a neutral magistrate within 48 hours of Defendant Bowles’ arrest?

3. May a justice court require conditions of bail to be performed prior to release?

Because we affirm the District Court’s order dismissing the DUI felony charge against Bowles in Issue 1, we decline to address the merits of Issues 2 or 3 at this time.

FACTUAL AND PROCEDURAL BACKGROUND

On April 20, 1996, Defendant Ray Lewis Bowles (Bowles) was arrested for driving under the influence, driving without a valid license, and driving without mandatory insurance coverage. While Bowles’ driving record from the Montana Department of Justice contained only two prior DUI convictions (December 1995 and March 1996), Bowles’ driving record filed with the Park County Sheriff’s Office contained a third DUI conviction from September 1977. Based upon Bowles’ Park County driving record, an Information was filed on April 24, 1996, in the Sixth Judicial District Court, Park County, charging Bowles with driving a motor vehicle while under the influence of alcohol (DUI), fourth offense, a felony in violation of § 61-8-401, MCA. On April 29, 1996, Bowles filed a motion to dismiss the felony DUI charge. On June 11, 1996, the District Court granted Bowles’ motion to dismiss, without prejudice to file a misdemeanor charge, concluding that because Bowles’ 1977 DUI conviction should have been expunged in 1982 under § 61-8-714(5), MCA(1981), it could not now be counted to support a fourth offense felony DUI charge. From this order, the State appeals and Bowles cross appeals. We affirm.

STANDARD OF REVIEW

A district court’s grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148, 930 P.2d 31, 33 (citations omitted). Because the parties have raised no factual disputes, we must only determine whether the District Court correctly interpreted the law. Based upon our decision in Brander, we hold that the District Court correctly concluded that Bowles’ 1977 DUI conviction should have been expunged in 1982 pursuant to § 61-8-714(5), MCA (1981), and, therefore, the District Court properly dismissed the charge of felony DUI, fourth offense.

DISCUSSION

1. Did the District Court err in concluding that Bowles’ 1977 DUI conviction may not be used to support the charge of felony fourth-offense DUI?

Section 61-8-714(5), MCA (1981), provided in part:

An offender is considered to have been previously convicted for the purposes of this section if less than 5 years have elapsed between the commission of the present offense and a previous conviction. If there has been no additional conviction for an offense under this section for a period of 5 years after a prior conviction hereunder, then such prior offense shall be expunged from, the defendant’s record. [Emphasis added.]

In 1989 the Montana Legislature amended § 61-8-714(5), MCA, to provide that if, after five years, a defendant had no additional DUI convictions, the defendant’s record would no longer be expunged, but rather the records and data relating to the prior DUI conviction would become confidential criminal justice information. Brander, 930 P.2d at 33-34 (citing § 2, Ch. 476, L. 1989).

In 1995, the Montana Legislature amended § 61-8-714, MCA, to include a felony sanction for repetitive DUI offenders, which provides in pertinent part:

(4) On the fourth or subsequent conviction, the person is guilty of a felony offense and shall be punished by imprisonment for a term of not less than 1 year or more than 10 years and by a fine of not less than $1,000 or more than $10,000. [Emphasis added.]

In conjunction with this new subsection, the Legislature amended § 61-8-714(6), MCA, (formerly subsection (5)), to provide in pertinent part:

(6) An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender’s fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. If there has not been an additional conviction for an offense under this section for a period of 5 years after a prior conviction under this section, then all records and data relating to the prior conviction are confidential criminal justice information, as defined in 44-5-103, and public access to the information may only be obtained by district court order upon good cause shown. [First emphasis indicates newly added language; second emphasis added.]

In its June 11, 1996 Order, the District Court determined that under § 61-8-714(5), MCA (1981), Bowles’ 1977 DUI conviction was required to be expunged from his record in 1982. The District Court explained that this expungement provision required “a comprehensive destruction of all records or identifiable descriptors of the offense.” Further, the District Court distinguished State v. Lorash (1989), 238 Mont. 345, 777 P.2d 884, explaining that in Lorash we held that defendant could not challenge the constitutionality of § 46-18-201, MCA, a statute prohibiting deferment of a subsequent felony conviction, because the defendant had failed to affirmatively request expungement as required by § 46-18-204, MCA (1987), and that expungement provision was no longer available to the defendant because it had been repealed before the defendant was sentenced for his present offense. The District Court explained that, here, unlike in Lorash, the expungement provision of § 61-8-714(5), MCA (1981), was self-executing, and, therefore, expungement of Bowles’ 1977 conviction from his record was required as a matter of course in 1982, despite the provision’s subsequent repeal in 1989. The District Court, therefore, concluded that the State could not now under § 61-8-714(6), MCA (1995), use records maintained in violation of § 61-8-714(5), MCA (1981), to support the felony DUI charge against Bowles. However, the District Court rejected Bowles’ ex post facto argument because Bowles was charged in 1996 with felony DUI, fourth offense, under § 61-8-714(6), MCA (1995), a statute in effect since October 1, 1995. Nonetheless, the District Court held that Bowles’ 1977 DUI conviction could not be counted to support the current charge of felony DUI, fourth offense, and any other result would violate Bowles’ rights to due process and equal protection. Consequently, the District Court granted Bowles’ motion to dismiss.

The State argues that the District Court erred when it granted Bowles’ motion to dismiss. The State asserts that the District Court too narrowly interpreted Lorash when it distinguished Lorash from the present case on the basis that the expungement provision at issue in Lorash required a defendant to affirmatively request expungement whereas the DUI expungement provision at issue here was self-executing. The State contends that the decision in Lorash was not based upon the defendant’s failure to invoke the expungement procedure, but rather was based upon the unavailability of the procedure due to its repeal. Therefore, the State maintains that, just as in Lorash, Bowles is not entitled to have his 1977 DUI conviction expunged under § 61-8-714(5), MCA (1981), because this expungement provision was repealed in 1989, and, therefore, is currently not available to him. Accordingly, the State asserts that Bowles’ 1977 DUI conviction may presently be counted for purposes of charging him with felony DUI, fourth offense.

Additionally, the State argues that it is unclear that § 61-8-714(5), MCA (1981), was intended to apply to local judicial or law enforcement records, such as those maintained by Park County. The State asserts that unlike § 46-18-204, MCA (1987), the statute at issue in Lorash, § 61-8-714(5), MCA (1981), did not expressly direct the Montana Department of Justice or any state or local official to expunge Bowles’record. Also, in contrast to § 46-18-204, MCA(1987), the State contends that § 61-8-714(5), MCA (1981), did not provide for dismissal of the underlying charge and that the legislative history concerning the repeal of this expungement provision in 1989 focused on the driving records of DUI defendants rather than judicial or law enforcement records. Relying on Lancaster v. Dept. of Justice (1985), 218 Mont. 97, 706 P.2d 126, the State asserts that the Montana Department of Justice, Motor Vehicle Division, has a duty, independent of any judicial or law enforcement record-keeping duties, to maintain records of the convictions of licensees pursuant to § 61-11-102(2), MCA. Therefore, the State contends that if the application of the expungement provision of § 61-8-714(5), MCA (1981), was intended to be limited to a DUI offender’s driving record, the continued maintenance of local judicial and law enforcement records would not be precluded. Thus, the State argues that Bowles’ 1977 DUI conviction recorded in the Park County Sheriff’s Office may be used to support the felony DUI charge against Bowles.

Finally, in its opening brief, the State argues that expungement is a procedural remedy, derived wholly from the statute authorizing it and may be extinguished by its repeal. However, in light of our decision in Brander, the State retracts this argument in its reply brief. Specifically, the State now argues that in Brander we implicitly concluded that the expungement provision of § 61-8-714(5), MCA (1981), created a vested substantive right when we determined that the defendant was entitled to expungement of his 1986 DUI conviction in 1991, two years after the expungement provision of § 61-8-714(5), MCA (1981), was repealed. Consequently, the State asserts that because this provision created a vested substantive right it may only be applied prospectively; that is, the expungement provision only applies to “prior” DUI convictions which occurred after October 1, 1981, the effective date of § 61-8-714(5), MCA (1981). Therefore, the State contends that because Bowles’ 1977 DUI conviction occurred before this date, he is not entitled to the expungement of his 1977 DUI conviction. Accordingly, based on the foregoing, the State argues that Bowles’ 1977 DUI conviction may be counted to support the felony DUI charge against him and that the District Court erred in granting Bowles’ motion to dismiss.

Bowles responds that the District Court properly concluded that his 1977 DUI conviction could not be used to enhance his DUI charge from a misdemeanor to a felony. Bowles agrees with the District Court that, unlike the statute at issue in Lorash, the expungement provision of § 61-8-714(5), MCA (1981), was self-executing. Therefore, relying on Brander, Bowles contends that under § 61-8-714(5), MCA (1981), his 1977 DUI conviction should have been expunged in 1982, as a matter of course, because he did not receive another DUI conviction during that five year period. Furthermore, contrary to the State’s argument, Bowles asserts that expungement of his 1977 DUI conviction should have occurred at all levels of authority including the records kept at the Park County Sheriff’s Office. Accordingly, Bowles argues that the District Court properly granted his motion to dismiss. We agree.

First, contrary to the State’s argument, we conclude that the District Court correctly distinguished Lorash from the case at bar. In Lorash, the district court convicted the defendant upon a guilty plea of criminal mischief for hitting and kicking another person’s car and imposed a two-year suspended sentence pursuant to § 46-18-201(6), MCA. The defendant on appeal, argued that § 46-18-201(6), MCA, violated his right to due process under Article II, Section 17 of the Montana Constitution by prohibiting deferral of his current sentence because he had previously served a deferred sentence for a prior felony conviction. In concluding that the defendant’s constitutional challenge to § 46-18-201(6), MCA, was moot, we pointed out that the expungement provision of § 46-18-204, MCA (1987), had been repealed in 1989 and was no longer available to the defendant who had failed to affirmatively request expungement, as required by § 46-18-204, MCA (1987), during the time the expungement provision was in effect.

Section 46-18-204, MCA (1985), provided that if a defendant moved the district court to dismiss the charges against him after the termination of the time period of a deferred sentence, the district court was permitted to do so. Before Lorash was sentenced for criminal mischief, § 46-18-204, MCA (1985), was amended in 1987 to permit a district court, upon dismissal of the charges, to order that the department of justice expunge the defendant’s record. See § 46-18-204, MCA (1987). This amendment was subsequently repealed in 1989 and replaced with instructions for a district court, upon dismissal of the charges, to order the department of justice to classify all records and data relating to the charge as confidential criminal justice information rather than to expunge them. See § 46-18-204, MCA (1989).

We note that under § 46-18-204, MCA, including its amendments in 1987 and 1989, it was critical that a defendant make a motion for his prior conviction to be dismissed and expunged. Lorash admitted at his sentencing hearing that he had not attempted to have his 1973 conviction dismissed or expunged pursuant to § 46-18-204, MCA. Lorash, 777 P.2d at 885-86. Consequently, because Lorash never made this motion, his 1973 conviction was never dismissed and he lost the opportunity to request expungement of his 1973 conviction when the expungement provision was repealed in 1989. Here, however, § 61-8-714(5), MCA (1981), did not require any affirmative action on a defendant’s part, but rather was self-executing, and, as such, expungement of a prior DUI conviction was required as a matter of law after the lapse of a five-year period without another DUI conviction. Therefore, unlike in Lorash, the expungement provision of § 61-8-714(5), MCA (1981), required as a matter of law that Bowles’ 1977 DUI conviction be expunged.

Second, and again contrary to the State’s argument, we conclude that the expungement provision of § 61-8-714(5), MCA (1981), not only applied to a defendant’s driving record but also to local judicial and law enforcement records as well. In Brander, we explained that the plain and ordinary meaning of “expunge” is “[t]o destroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information — including criminal records — in files, computers, or other depositories.” Brander, 930 P.2d at 36 (citation omitted). Therefore, we concluded that to expunge an offense from a defendant’s record was to destroy all traces of the criminal process relating to the offense. Brander, 930 P.2d at 36 (citations omitted). We further distinguished the effect of this mandate to expunge an offense from a defendant’s record as required by § 61-8-714(5), MCA (1981), from instructions to classify a conviction in a defendant’s record as confidential criminal justice information as required by § 61-8-714(5), MCA (1989). We explained that “[u]nlike expunged records which are completely destroyed, classification of records as confidential criminal justice information does not prevent a court from reviewing those records, but merely restricts the dissemination of those records to criminal justice agencies and others authorized by law.” Brander, 930 P.2d at 36 (citations omitted). Consequently, because the expungement provision of § 61-8-714(5), MCA (1981), required that all traces of the criminal process relating to the prior offense should be destroyed, we agree with the District Court that the record of Bowles’ 1977 DUI conviction located in the Park County Sheriff’s Office was maintained in violation of § 61-8-714(5), MCA (1981), and, therefore, could not be counted for the purposes of currently charging Bowles with felony DUI, fourth offense, pursuant to § 61-8-714(6), MCA (1995). Expungement of a criminal record requires the physical destruction of the record by whomever and in whatever depository the record is maintained. See Brander, 930 P.2d at 36.

Finally, as to the State’s argument that we implicitly concluded in Brander that the expungement provision of § 61-8-714(5), MCA (1981), created a vested substantive right, and, therefore, could only be applied prospectively to “prior” convictions occurring after October 1,1981, the statute’s effective date, we rejected this argument in State v. Reams (1997), [284 Mont. 448], 945 P.2d 52.

Based on the foregoing, we hold that the District Court correctly concluded that Bowles’ 1977 DUI conviction should have been expunged in 1982 pursuant to § 61-8-714(5), MCA (1981), and, therefore, could not be used to support the charge of felony fourth-offense DUI. Accordingly, we affirm the District Court’s June 11,1996 Order granting Bowles’ motion to dismiss.

2. Was proper judicial determination of probable cause made by a neutral magistrate within 48 hours of Bowles’ arrest?

On cross appeal, Bowles argues that a proper judicial determination of probable cause was never made by a neutral magistrate within 48 hours of Bowles’ arrest, and, therefore, the District Court’s Order granting Bowles’ motion to dismiss, without prejudice to file a misdemeanor charge should be changed to a dismissal with prejudice. Bowles asserts that although the District Court did not address this issue, this Court should, in the interest of judicial economy. The State responds that we should not address this issue which is presented as a cross appeal in the State’s interlocutory appeal because Bowles has no right to appeal prior to a final judgment of conviction and sentence.

We agree with the State and decline to address the merits of this issue at this time because the District Court has not addressed it and because Bowles has not yet been charged with a misdemeanor. “This Court does not issue advisory opinions.” State ex rel. Fletcher v. Dist. Court (1993), 260 Mont. 410, 419, 859 P.2d 992,997 (citation omitted). Furthermore, if Bowles is charged with a misdemeanor, the District Court will then have the opportunity to rule on this issue in light of County of Riverside v. McLaughlin (1991), 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49; Gerstein v. Pugh (1975), 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54; Whiteley v. Warden of Wyoming State Penitentiary (1971), 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; and Sacco v. High County Independent Press, Inc. (1995), 271 Mont. 209, 896 P.2d 411.

3. May a justice court require conditions of bail to be performed prior to release?

Bowles also argues on cross appeal that the justice court erred in requiring Bowles to participate in an alcohol evaluation as a condition of his release from jail. The State again responds that we should not address this issue because Bowles has no right to cross appeal in the State’s interlocutory appeal. Because we affirm the District Court’s dismissal of Bowles’ felony DUI charge in Issue 1, we decline to address the merits of this issue, at this time.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, HUNT, REGNIER, TRIEWEILER and GRAY concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES ALBERT COONEY, Defendant and Appellant.
    No. 96-532.
    Submitted on Briefs March 20, 1997.
    Decided September 22, 1997.
    54 St.Rep. 967. 945 P.2d 891.
    284 Mont. 500.

      For Appellant: Terry G. Sehestedt, Missoula.
    For Respondent: Robert L. “Dusty” Deschamps HI, Missoula County Attorney, Fred Van Valkenburg, Deputy Missoula County Attorney, Missoula; Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the Fourth Judicial District Court, Missoula County. On June 26,1996, the District Court entered an opinion and order denying Defendant Cooney’s motion to dismiss both Count I, a charge of felony DUI, fourth offense, and Count II, a charge of driving while license suspended or revoked, a misdemeanor. From this opinion and order, Defendant Cooney appeals. We affirm in part, reverse in part and remand.

We restate the following issues raised on appeal:

1. Did the District Court err in denying Defendant Cooney’s motion to dismiss Count I, a charge of felony DUI, fourth offense?

2. Did the District Court err in denying Defendant Cooney’s motion to dismiss Count II, a misdemeanor charge of driving while license suspended or revoked?

FACTUAL AND PROCEDURAL BACKGROUND

On December 16, 1995, Defendant Cooney (Cooney) was arrested for driving while under the influence of alcohol (DUI). Cooney’s driving record indicated that he had previously been convicted of DUI in October 1984, September 1986 and July 1989. Additionally, Cooney’s driving record revealed that his Montana driver’s license had been revoked on July 31, 1989, and had not been reinstated at the time he was arrested on December 16, 1995. On February 15, 1996, an Information was filed charging Cooney with felony DUI, fourth offense, in violation of §§ 61-8-401 and -714, MCA (1995), (Count I) and driving while license suspended or revoked, a misdemeanor, in violation of § 61-5-212, MCA (1995), (Count II). On February 23, 1996, Cooney entered pleas of not guilty to both charges.

On April 5, 1996, Cooney filed a motion to dismiss the charge of felony DUI, fourth offense (Count I), challenging the application of the felony DUI statute on ex post facto grounds and contending that his prior DUI convictions should have been expunged pursuant to the expungement provision of § 61-8-714(5), MCA. The State filed a brief in opposition and Cooney filed a reply brief. While no transcript was filed on appeal, a minute entry indicates that on May 22, 1996, Cooney moved to change his pleas and entered a plea of guilty to Count I of the Information, reserving the right to appeal from an adverse ruling on his motion to dismiss. Additionally, Cooney made an oral motion to dismiss Count II of the Information asserting that the charge violated the prohibition against ex post facto legislation, which the District Court denied. Thereafter, Cooney also entered a plea of guilty to Count II, reserving the right to appeal the court’s adverse ruling. On May 23, 1996, Cooney entered a written plea of guilty and waiver of rights. On June 26, 1996, the District Court entered an opinion and order denying both Cooney’s motions to dismiss Count I and Count II. Subsequently, the District Court sentenced Cooney upon Count I to the Department of Corrections for a period of five years, suspending four years of the commitment upon certain conditions. As to Count II, the court imposed a concurrent sentence of six months. From the District Court’s June 26, 1996 opinion and order, Cooney appeals. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.

STANDARD OF REVIEW

A district court’s grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148, 150, 930 P.2d 31, 33 (citation omitted). Because the parties have raised no factual dispute concerning either Issue 1 or 2, we must only determine whether the District Court correctly interpreted the law when it denied Cooney’s motions to dismiss.

DISCUSSION

1. Did the District Court err in denying Cooney’s motion to dismiss Count I, a charge of felony DUI, fourth offense?

Section 61-8-714(5), MCA (1981), provided in part:

An offender is considered to have been previously convicted for the purposes of this section if less than 5 years have elapsed between the commission of the present offense and a previous conviction. If there has been no additional conviction for an offense under this section for a period of 5 years after a prior conviction hereunder, then such prior offense shall be expunged from, the defendant’s record. [Emphasis added.]

In 1989 the Montana Legislature amended § 61-8-714(5), MCA, to provide that if, after five years, a defendant had no additional DUI convictions, the defendant’s record would no longer be expunged, but rather the records and data relating to the prior DUI conviction would become confidential criminal justice information. Brander, 930 P.2d at 33-34 (citing § 2, Ch. 476, L. 1989).

In 1995, the Montana Legislature amended § 61-8-714, MCA, to include a felony sanction for repetitive DUI offenders, which provides in pertinent part:

(4) On the fourth or subsequent conviction, the person is guilty of a felony offense and shall be punished by imprisonment for a term of not less than 1 year or more than 10 years and by a fine of not less than $1,000 or more than $10,000. [Emphasis added.]

In conjunction with this new subsection, the Legislature amended § 61-8-714(6), MCA, (formerly subsection (5)), to provide in pertinent part:

(6) An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender’s fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. If there has not been an additional conviction for an offense under this section for a period of 5 years after a prior conviction under this section, then all records and data relating to the prior conviction are confidential criminal justice information, as defined in 44-5-103, and public access to the information may only be obtained by district court order upon good cause shown. [First emphasis indicates newly added language; second emphasis added.]

In its June 26, 1996 opinion and order, the District Court denied Cooney’s motion to dismiss the charge of felony DUI, fourth offense, rejecting both Cooney’s ex post facto and expungement arguments. Relying on State v. Maldonado (1978), 176 Mont. 322, 578 P.2d 296, the District Court concluded that the application of §§ 61-8-714(4) and (6), MCA (1995), did not violate the ban on ex post facto legislation because Cooney was not being punished again for his past conduct, but rather he was being punished for an offense he committed two months after the effective date of §§ 61-8-714(4) and (6), MCA (1995), and, therefore, was only subjected to increased punishment for his present conduct.

The District Court also concluded that Cooney was not entitled to expungement of any of his three prior DUI convictions from his record. The District Court explained that Cooney’s first two DUI convictions did not satisfy the expungement provision requirements of § 61-8-714(5), MCA, because after each of his first two DUI convictions he was convicted of another DUI offense before five years had elapsed. Additionally, relying on State v. Lorash (1989), 238 Mont. 345, 777 P.2d 884, the District Court explained.that Cooney was not entitled to have his July 31, 1989 DUI conviction expunged from his record because the expungement provision of § 61-8-714(5), MCA, had been repealed on October 1, 1989, and, therefore, was no longer available. Furthermore, citing State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343, and State v. Coleman (1979), 185 Mont. 299, 605 P.2d 1000, the District Court determined that the 1989 changes made in § 61-8-714(5), MCA (1989), were procedural or remedial in nature, and, therefore, the ban on ex post facto legislation did not apply. Based on the foregoing, the District Court held that Cooney was properly charged with felony DUI, fourth offense, in violation of § 61-8-401, MCA.

Cooney argues that the District Court erred in denying his motion to dismiss the charge of felony DUI, fourth offense. While Cooney concurs with the State that, in light of Brander, this case should be remanded to the District Court, he still argues that the application of §§ 61-8-714(4) and (6), MCA (1995), violated the ban on ex post facto legislation and that all three of his prior DUI convictions should have been expunged pursuant to the expungement provision of § 61-8-714(5), MCA.

Cooney asserts that application of §§ 61-8-714(4) and (6), MCA (1995), violates his right to be free from the application of ex post facto legislation, as guaranteed by Article I, Section 10 of the United States Constitution and Article II, Section 31 of the Montana Constitution. Specifically, Cooney contends that the application of §§ 61-8-714(4) and (6), MCA (1995), violates the two part test used to determine whether a law is ex post facto, which we adopted in State v. Leistiko (1992), 256 Mont. 32,844 P.2d 97. First, Cooney asserts that §§ 61-8-714(4) and (6), MCA (1995), are retrospective because they alter the legal consequences of the DUI offenses he committed before the statute’s effective date. Second, Cooney asserts that §§ 61-8-714(4) and (6), MCA (1995), are more onerous than prior law because they now allow consideration of prior DUI convictions which should have been expunged pursuant to the expungement provision of § 61-8-714(5), MCA.

In this regard, Cooney argues that the District Court also erred in concluding that Cooney was not entitled to have his three prior DUI convictions expunged from his record. Rather, Cooney contends that because the expungement provision of § 61-8-714(5), MCA, was the law in effect at the time he received each of his three DUI convictions, and because he had satisfied the expungement provision requirements, all three DUI convictions should have been automatically expunged. Cooney asserts that the purpose of the expungement provision of § 61-8-714(5), MCA, was to reward a defendant for not receiving a DUI conviction for a five-year period by expunging from the defendant’s record all prior DUI convictions, not just the most recent. Cooney distinguishes Infanger v. State (Mont. 1997), 934 P.2d 1040, explaining that at no time did more than five years ever elapse between each of Infanger’s DUI convictions and that three of his five DUI convictions were entered after the expungement provision had been repealed in 1989. In contrast, Cooney points out that, in the case at bar, all of his DUI convictions were entered at the time the expungement provision of § 61-8-714(5), MCA, was in effect and he did not receive another DUI conviction during the five-year period following his 1989 DUI conviction. Consequently, Cooney argues that both his 1984 and 1986 DUI convictions should have been expunged.

Cooney also asserts that his July 31,1989 DUI conviction should have been expunged pursuant to the expungement provision of § 61-8-714(5), MCA (1987), because more than five years elapsed before he received his present DUI conviction. Cooney argues that the District Court incorrectly relied on Lorash to conclude that Cooney was not entitled to have his 1989 DUI conviction expunged from his record because the expungement provision of § 61-8-714(5), MCA, had been repealed on October 1, 1989, and, therefore, was no longer available. Cooney contends that Lorash is not dispositive here because the expungement provision of § 46-18-204, MCA, the statute at issue in Lorash, required that a defendant make a motion to have his prior conviction expunged, whereas, the expungement provision of § 61-8-714(5), MCA, was self-executing.

Furthermore, Cooney disagrees with the District Court’s conclusion that, based on Coleman, the repeal of the expungement provision in 1989 was only procedural in nature, and, therefore, not subject to the ban on ex post facto legislation. Cooney claims that the District Court misinterpreted our decision in Coleman. Cooney instead contends that in Coleman we rejected the defendant’s ex post facto arguments, not simply because the statutory changes were procedural, but also because the changes were ameliorative and did not deprive the defendant of any substantial right or immunity. Cooney also cites to Weaver v. Graham (1981), 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17, arguing that even if a statute alters provisions accorded only by the grace of the legislature, it still violates the ban on ex post facto legislation if the statute is retrospective and more onerous than prior law. Cooney asserts that here, unlike in Coleman, the 1989 changes to § 61-8-714(5), MCA, applied retroactively to keep Cooney’s three prior DUI convictions on his record as confidential criminal justice information, convictions that should have been expunged under the prior law, and, therefore, these changes were not ameliorative, but, rather, were more onerous than prior law.

The State responds that our decision in Brander is dispositive, and, therefore, we should remand this case to the District Court for reconsideration of its decision in light of Brander. The State asserts that, in Brander, we rejected similar ex post facto arguments, holding that §§ 61-8-714(4) and (6), MCA (1995), did not violate the ex post facto clauses of the federal or Montana constitutions. Therefore, the State argues that the District Court properly rejected Cooney’s ex post facto claim. However, the State argues that, in Brander, we still held that the defendant was not properly sentenced under § 61-8-714, MCA (1995), because the defendant’s 1986 DUI conviction should have been expunged in 1991 pursuant to § 61-8-714(5), MCA (1985), and, therefore, the district court should not have considered this conviction when it sentenced the defendant for his 1995 DUI conviction. Consequently, the State essentially concedes that, based on our rationale in Brander, Cooney’s July 31, 1989 DUI conviction should be expunged from his record. Yet, relying on Infanger v. State (Mont. 1997), 934 P.2d 1040, the State maintains that Cooney’s 1984 and 1986 DUI convictions should not be expunged from his record because less than five years elapsed after each DUI conviction before Cooney received another, and, therefore, his first two DUI convictions were not eligible for expungement.

The State also asserts that in Brander we did not consider the effect of our decision in Lorash and did not expressly consider whether the expungement provision of § 61-8-714(5), MCA, created a substantive right or a procedural remedy. Therefore, the State suggests that we reconsider our decision in Brander. In the case at bar, the State argues that expungement is a procedural remedy, derived wholly from the statute authorizing it and may be extinguished by repeal of the statute. Furthermore, the State contends that our decision in Lorash implicitly recognizes the procedural or remedial nature of expungement. However, we note that the State retracted this argument in State v. Bowles (1997) [284 Mont. 490], 947 P.2d 52, and argued instead that in Brander we implicitly concluded that the expungement provision of § 61-8-714(5), MCA (1981), created a vested substantive right that may only be applied prospectively to “prior” DUI convictions occurring after October 1, 1981, the effective date of § 61-8-714(5), MCA (1981).

As to Cooney’s ex post facto arguments concerning §§ 61-8-714(4) and (6), MCA(1995), the State is correct that we rejected these same arguments in Brander. See Brander, 930 P.2d at 33-35. Nonetheless, under our analysis in Brander, because more than five years elapsed after Cooney’s July 31, 1989 DUI conviction before he received a subsequent DUI conviction, his 1989 DUI conviction should have been expunged from his record in 1994, pursuant to § 61-8-714(5), MCA (1987). See Brander, 930 P.2d at 35-37. However, as the State argues, Cooney’s first two DUI convictions were never eligible for expungement pursuant to § 61-8-714(5), MCA, because at no time did more than five years elapse before Cooney received an additional DUI conviction. See Brander, 930 P.2d at 35-37.

Furthermore, in State v. Bowles (1997), [284 Mont. 490], 947 P.2d 52, we distinguished Lorash based on the differences in the expungement provision requirements of § 46-18-204, MCA, the statute at issue in Lorash, and of § 61-8-714(5), MCA(1981). Also, in State v. Reams (1997), [284 Mont. 448], 945 P.2d 52, we addressed the nature and scope of the repealed expungement provision of § 61-8-714(5), MCA (1981), explaining that we made no distinction in Brander as to whether this provision created a substantive or procedural right, but rather considered our decision in Brander better explained by the rationale referred to in State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343, and discussed in more detail in State v. Wilson (1996), 279 Mont. 34, 926 P.2d 712. Employing this same rationale in Reams, we concluded that any DUI conviction entered before October 1, 1989, the date the expungement provision was repealed, was automatically eligible for expungement if the elements of the ex-pungement provision of § 61-8-714(5), MCA, were satisfied.

Consequently, we hold that the District Court correctly concluded that Cooney was not subject to an ex post facto application of §§ 61-8-714(4) and (6), MCA (1995). However, again based on our decision in Brander as well as our decisions in Bowles and Reams, we hold that the District Court incorrectly concluded that Cooney’s 1989 DUI conviction could be counted to support the present charge of felony DUI, fourth offense, and, therefore, the District Comb erred in denying Cooney’s motion to dismiss. Accordingly, we remand this issue for entry of an order dismissing the charge of felony DUI, fourth offense.

2. Did the District Court err in denying Cooney’s motion to dismiss Count II, a misdemeanor charge of driving while license suspended or revoked?

Section 61-2-107(1), MCA (1987), provided:
Notwithstanding the provisions of any other law of the state, a driver’s license that has been suspended or revoked under 61-5-205 or 61-8-402 may not be restored until the driver has paid to the department a fee of $50 in addition to any other fines, forfeitures, and penalties assessed as a result of conviction for a violation of the traffic laws of the state. [Emphasis added.]

In 1989, the Montana Legislature amended § 61-2-107(1), MCA, to provide:

Notwithstanding the provisions of any other law of the state, a driver’s license that has been suspended or revoked under 61-5-205 or 61-8-402 must remain suspended or revoked until the driver has paid to the department a fee of $50 in addition to any other fines, forfeitures, and penalties assessed as a result of conviction for a violation of the traffic laws of the state. [Emphasis indicates newly added language.]

In its June 26, 1996 opinion and order, the District Court denied Cooney’s motion to dismiss Count II, a misdemeanor charge of driving while license suspended or revoked, in violation of § 61-5-212, MCA (1995). The District Court rejected Cooney’s ex post facto claim explaining that as indicated by the legislative history of the 1989 amendment to § 61-2-107(1), MCA, including the title of the 1989 Act that amended § 61-2-107(1), MCA, as well as hearing testimony, the 1989 amendment to § 61-2-107(1), MCA, merely clarified that a license suspension or revocation remained in effect until the license reinstatement fee was paid, and, therefore, did not amount to a substantive change in the statute. Alternatively, the court determined that, even if the 1989 amendment changed the law, such a change related exclusively to a remedy or mode of procedure, and, therefore, Cooney still had no substantive right to rely on a one-year period of revocation.

Cooney explains that his Montana driver’s license was revoked for one year effective July 31,1989, the date of his third DUI conviction. Cooney asserts that under § 61-2-107(1), MCA (1989), his license remains revoked, whereas, under § 61-2-107(1), MCA (1987), the law in effect at the time of Cooney’s conviction, the “revoked” status of his license would have been removed no later than when his license would have expired by its own terms, whether he paid the fee or not. Therefore, Cooney argues that the application of § 61-2-107(1), MCA (1989), violates the ban on ex post facto legislation because § 61-2-107(1), MCA (1989), is clearly more onerous than prior law. Consequently, Cooney contends that, despite his failure to pay the required fee pursuant to § 61-2-107(1), MCA (1987), his license would have simply expired by 1993, and, therefore, he should not have been charged with driving while license suspended or revoked, a misdemeanor, in violation of § 61-5-212, MCA (1995).

The State responds that, under our rationale in Brander, the District Court properly rejected Cooney’s ex post facto argument because if, in fact, the 1989 amendments to § 61-2-107(1), MCA (1987), did change the law, it did not change the consequences of Cooney’s prior conduct, but rather put Cooney on notice of the consequences of any future violation of the law. Also, the State argues that the District Court properly concluded that the amendment was intended to clarify the law rather than change it substantively, and, therefore, did not violate the ban on ex post facto legislation. Consequently, the State asserts that under both versions of § 61-2-107(1), MCA, Cooney was not permitted to avoid payment of the reinstatement fee after his license was revoked, regardless of how long he waited.

Based on our decision in Brander, we agree with the State that the District Court properly concluded that application of § 61-2-107(1), MCA(1989), did not violate the ban on ex post facto legislation because this statute does not change the legal consequences of Cooney’s prior conduct. Furthermore, looking to the plain language of both the 1987 and 1989 versions of § 61-2-107(1), MCA, we conclude that the 1989 amendments to § 61-2-107(1), MCA (1987), merely clarified that a period of suspension or revocation continues until a defendant pays the required fee. Here, because Cooney had not paid this fee prior to December 16, 1995, the date of his arrest, the revocation of his license was still in effect, and, therefore, he was properly charged with violating § 61-5-212, MCA (1995). Accordingly, we affirm that part of the District Court’s June 26,1996 opinion and order denying Cooney’s motion to dismiss Count II of the Information.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this Opinion.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, HUNT, REGNIER, TRIEWEILER and GRAY concur.


author: JUSTICE LEAPHART,

text:
    JOSEPH EVE & CO., Plaintiff and Appellant, v. CATHERINE B. ALLEN, Defendant and Respondent.
    No. 97-405.
    Decided September 22, 1997.
    54 St.Rep. 987. 945 P.2d 897.
    284 Mont. 511.
   OPINION AND ORDER

Background

Joseph Eve & Co. (Eve) filed a Notice of Appeal with the District Court for the Thirteenth Judicial District, Yellowstone County, on June 23, 1997, following that court’s March 7, 1997 Judgment. Eve filed an Amended Notice of Appeal on June 27,1997. On July 23,1997, Catherine B. Allen (Allen) filed a motion to dismiss the appeal claiming that the District Court’s judgment was not final. This Court denied Allen’s motion to dismiss on August 12,1997. Two days later, on August 14, 1997, Allen filed her Motion for Leave to File Cross Appeal with this Court. Eve filed its memorandum in opposition to respondent’s motion on August 26, 1997.

The issue before this Court is one of first impression. We are called upon to answer the question of whether the timely filing of a notice of cross appeal is a jurisdictional prerequisite to this Court’s consideration of the cross appeal or whether the time for filing a notice of a cross appeal is a procedural requirement that may be discretionarily waived. We hold that the time limit for the filing of a cross appeal is jurisdictional and that on the facts of this case we are precluded from considering Allen’s cross appeal.

Discussion

Under Rule 5(a)(3), M.R.App.R, a cross appeal may be filed within 14 days after the date on which the first notice of appeal was filed. In this case, Allen failed to file a cross appeal within that time and she now requests leave of this Court to file her cross appeal even though 52 days elapsed from the time the first notice of appeal was filed until the time she filed her motion.

Allen relies on two circuit courts of appeal decisions for her contention that while a timely notice of appeal is mandatory and jurisdictional, a cross appeal is a matter of practice or procedure and is not a jurisdictional prerequisite once an initial appeal has been filed. Texport Oil Co. v. M/V Amolyntos (2d. Cir. 1993), 11 F.3d 361, 366; Bryant v. Technical Research Co. (9th Cir. 1981), 654 F.2d 1337, 1341. Allen asserts that, based on these decisions, this Court has discretion to disregard the time requirement.

While the two decisions Allen cites hold that cross appeals are not jurisdictional, the remainder of the circuit courts of appeal differ on this issue. The federal rule regarding the filing of a cross appeal provides: “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires.” Rule 4(a)(3), Fed.R.App.R Some circuits follow the view expressed in Texport and Bryant that this rule is a rule of practice which may be waived in the interest of justice or under appropriate circumstances. United States v. Tabor Court Realty Corp. (3rd Cir. 1991), 943 F.2d 335; LaFaut v. Smith (4th Cir. 1987), 834 F.2d 389; Anthony v. Petroleum Helicopters, Inc. (5th Cir. 1982), 693 F.2d 495. Other circuits adhere to the view that the time limits for filing a cross appeal are mandatory and jurisdictional. Akron Center for Reproductive Health v. Slaby (6th Cir. 1988), 854 F.2d 852, rev’d on other grounds sub nom Ohio v. Akron Ctr. for Reproductive Health (1990), 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405; Young Radiator Co. v. Celotex Corp. (7th Cir. 1989), 881 F.2d 1408; Savage v. Cache Valley Dairy Ass’n (10th Cir. 1984), 737 F.2d 887.

In Young, the Seventh Circuit Court of Appeals held that the time limits for filing a cross appeal are mandatory and jurisdictional. Young, 881 F.2d at 1416. The court in Young pointed out that the rationale behind the contrary view that the filing of a cross appeal is merely a matter of practice or procedure, is based on the notion that the initial notice of appeal invokes jurisdiction over the entire case so that the. appellate court has the power to overlook the absence of a notice of cross appeal. Young, 881 F.2d at 1415. In refuting this idea, the court in Young cited to a United States Supreme Court decision, Torres v. Oakland Scavenger Co. (1988), 487 U.S. 312,108 S.Ct. 2405, 101 L.Ed.2d 285, that addressed a related issue, the interpretation of Rule 3(c), Fed.R.App.P., regarding the failure to specify all parties taking an appeal. The Supreme Court held in Torres that “the requirements of Rules 3 and 4 are mandatory and jurisdictional and that although the courts of appeals may liberally construe those rules to determine whether they have been complied with, the courts may not waive noncompliance.” Young, 881 F.2d 1416.

In addition, Bryant and Texport, the cases cited by Allen to support her contention, are limited in their holdings. The court in Bryant emphasized the narrow scope of its holding and stated that “[i]t will be the unusual case where an appellee that fails to file a notice of appeal can challenge unfavorable aspects of a judgment.” Bryant, 654 F.2d at 1343. The court in Texport pointed out that the filing of the cross appeal was late by only one business day and that the direct appeal and the cross appeal were “closely interrelated.” Texport, 11 F.3d at 366.

Certain state jurisdictions also adhere to the idea that the timely filing of a cross appeal is jurisdictional. Mahaffey v. Investor’s Nat. Sec. Co. (Nev. 1986), 725 P.2d 1218; Johnson v. State (Kan. 1986), 727 P.2d 912, overruled in part by Denton v. Sunflower Elec. Co-op., Inc. (Kan. 1988), 748 P.2d 420; Rossmiller v. Rossmiller (Wis. Ct. App. 1989), 444 N.W.2d 445; McCracken v. Edward D. Jones & Co. (Iowa Ct. App. 1989), 445 N.W.2d 375.

In Montana, this Court has long held that the time limits for filing an appeal are mandatory and jurisdictional. “An appellant has a duty to perfect its appeal in the manner and time provided in Rule 5. Absent this compliance, this Court lacks jurisdiction to hear the appeal.” Foster Apiaries, Inc. v. Hubbard Apiaries (1981), 193 Mont. 156, 159, 630 P.2d 1213, 1215 (citing Price v. Zunchich (1980), 188 Mont. 230, 612 P.2d 1296).

In a similar fashion, this Court has held that the failure to properly file a cross appeal precludes this Court from addressing the issues raised in the cross appeal. For example, we said in Johnson v. Tindall (1981), 195 Mont. 165, 635 P.2d 266, that:

Although Rule 14 provides for review of matters by cross-assignment of error, this does not eliminate the necessity for cross-appeal by a respondent who seeks review of rulings on matters separate and distinct from those sought to be reviewed by the appellant. Francisco v. Francisco (1948), 120 Mont. 468, 470, 191 P.2d 317, 319. A respondent who has not cross-appealed may not seek a determination of the amount involved more favorable to him than that made by the court below. Mechanics Universal Joint Co. v. Culhane (1936), 299 U.S. 51, 58, 57 S.Ct. 81, 84-85, 81 L.Ed. 33, 38. 5 Am. Jur. 2d Appeal and Error, § 707.

Johnson, 635 P.2d at 268. See also Converse v. Converse (1982), 198 Mont. 227, 232, 645 P.2d 413, 416; Lemley v. Allen (1983), 203 Mont. 37, 43, 659 P.2d 262, 266; Johnson v. Johnson (1983), 205 Mont. 259, 263, 667 P.2d 438, 440.

In addition, we stated in Mydlarz v. Palmer/Duncan Const. Co. (1984), 209 Mont. 325, 682 P.2d 695, that:

Respondent Palmer/Duncan has raised two issues not addressed by appellant. We will not consider such issues because Palmer/Duncan has not complied with Montana Rules of Appellate Civil Procedure; specifically, Palmer/Duncan has not perfected a cross-appeal. Although Rule 14, M.R.App.Civ.P., provides for review of matters by cross-assignment of errors, this does not eliminate the necessity for cross-appeal by a respondent who seeks review of matters separate and distinct from those sought to be reviewed by appellant. Johnson v. Tindall (Mont. 1981), 635 P.2d 266, 268, 38 St.Rep. 1763; Francisco v. Francisco (1948), 120 Mont. 468, 470, 191 P.2d 317, 319.

Mydlarz, 682 P.2d at 700. See also Tigart v. Thompson (1989), 237 Mont. 468, 475, 774 P.2d 401, 406; Baldwin v. Orient Exp. Restaurant (1990), 242 Mont. 373, 377, 791 P.2d 49, 51.

Four years later, in Neumann v. Rogstad (1988), 232 Mont. 24, 757 P.2d 761, we stated that:

[I]t is alleged that the District Court erred when it failed to grant the defendant costs and attorney fees pursuant to § 72-12-206, MCA. We find the issue is not properly before us.
We note that [appellant] did not raise the issue of attorney fees. In order to preserve an issue not raised by an appellant, it is necessary for the personal representative as respondent to file a notice of cross-appeal.... The respondent’s failure to so file is thus fatal to his claim.

Neumann, 757 P.2d at 765. Thus, unlike those federal courts that base their holdings on the notion that the initial notice of appeal invokes jurisdiction over the entire case, this Court follows the belief that it only has jurisdiction over those issues addressed in the appeal or a properly filed cross appeal.

Accordingly, we conclude that the time limits for filing a cross appeal in Montana are jurisdictional and that Allen’s failure to file her cross appeal within the 14 day limit provided by Rule 5(a)(3), M.R.App.P., precludes this Court from considering her Motion for Leave to File Cross Appeal. Therefore,

IT IS ORDERED that Allen’s Motion for Leave to File Cross Appeal should be and is, hereby, DENIED.

IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order by mail to counsel of record.

Dated this 22nd day of September, 1997.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, REGNIER, TRIEWEILER and GRAY concur.

JUSTICE LEAPHART,

dissenting.

I dissent. The Court concludes that the filing of a cross appeal is jurisdictional. In reaching that conclusion, the Court cites a number of our decisions in which we have held that, in order to preserve an issue for review on appeal, a party must file a notice of appeal or notice of cross appeal. E.g. Neumann v. Rogstad (1988), 232 Mont. 24, 29, 757 P.2d 761, 765. I agree that in order to raise an issue not raised by the appellant, the respondent must file a notice of cross appeal. The issue here, however, is not whether the respondent must file a notice of cross appeal but, rather, whether this Court has the power to extend the time for filing that notice.

I adhere to the view that when the appellant files a notice of appeal, jurisdiction over the entire case passes to the appellate court. The Court’s conclusion that we do not obtain jurisdiction over the entire case, but only over those issues addressed in the appeal, ignores the fact that an appellant is not required to specify issues in his notice of appeal. The notice of appeal need only name the party taking the appeal and the order or judgment appealed from. Rule 4(c), M.R.App.P. The issues are only defined when the appellant’s brief is filed, well after jurisdiction has passed. “When a notice of appeal has been filed, jurisdiction passes from the District Court and vests in the Supreme Court.” Powers Mfg. Co. v. Leon Jacobs Enter. (1985), 216 Mont. 407, 411, 701 P.2d 1377, 1380. Once the appellate court acquires jurisdiction over the entire case, the filing of a cross appeal becomes a matter of practice or procedure subject to the court’s discretion to suspend the rules when justice so requires. See Texport Oil Co. v. M/V Amolyntos (2d Cir. 1993), 11 F.3d 361, 366; Bryant v. Technical Research Co. (9th Cir. 1981), 654 F.2d 1337, 1341-42.

Although Rule 5(c), M.R.App.P., allows the district court to extend the time for filing a notice of appeal, it does not address the filing of a notice of cross appeal. In the absence of an applicable rule, and given that jurisdiction over the entire case passes from the trial court to the appellate court upon the filing of the notice of appeal, I would hold that the request for an extension was properly filed with this Court and that, under Rule 3, M.R.App.P, we had discretion to determine whether or not good cause existed to suspend the time limit.