City of Billings v. Dill , 327 Mont. 262 ( 2005 )

NO. 04-205
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 134CITY OF BILLINGS,
Plaintiff and Respondent,
TYEREL GARY DILL,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 2001-580,
- Honorable G. Todd Baugh, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jack E. Sands, Attorney at Law, Billings, Montana
For Respondent:
'
Honorable Mike McGrath, Attorney General; Jon Ellingson,
'
Assistant Attoi-ney General, Helena, Montana
Brent Brooks, City Attorney, Billings, Montana
Submitted on Briefs: April 6,2005
Decided: May 3 1,2005
Filed:
Justice Jim Rice delivered the Opinion of the Court.
11 Tyerel Dill (Dill) appeals from thejudgment entered by the Thirteenth Judicial District
Court, Yellowstone County, on December 10,2003, affirming his conviction and sentence
imposed by the City of Billings Municipal Court. We dismiss for lack of jurisdiction.
72 We address the following issue:
73 Was the notice of appeal untimely filed, thus precluding the exercise of appellate
jurisdiction?
FACTUAL AND PROCEDURAL BACKGROUND
74 In the early morning hours of December 30, 1999, Dill was visiting his mother,
Bonnie Dill, and her companion, Roger Edwards (Edwards), who were staying at the Billings
Sheraton Hotel, when an argument arose between Dill and Edwards. Edwards called
security, and Tracy skins (Askins) of Guardian Security came to the room and told Dill to
leave. In the process of stepping between Dill and Edwards, Askins claimed he was punched
in the nose by Dill. Two Sheraton Hotel employees then arrived and escorted Dill out of the
room, where another dispute arose in the hallway. The security guard and other hotel
employees attempted to detain Dill until the police arrived, at which time Dill grabbed the
security guard's pepper spray, and, as a result of the struggle, the cannister discharged in the
hallway.
75 Officer Jim Woog (Officer Woog) of the Billings Police Department then arrived,
encountered the ongoing disturbance in the hallway and tried to de-escalate the situation.
Officer Woog handcuffed Dill and escorted him down the elevator, through the lobby and
2
out the Hotel's front door, at which time Dill spit in Officer Woog's face. Officer Woog then
forced Dill to the ground and used pepper spray to subdue him.
76 Dill was originally charged with assault, assault with a bodily fluid, and obstructing
a police officer, all misdemeanors, resulting from the incident. Dill initially went to trial in
Billings Municipal Court on June 22 and 23,2000. He was convicted of assault with bodily
fluid and acquitted of the other two charges.
77 Dill appealed his conviction to the District Court which ordered a new trial on the
assault with bodily fluid charge, because of an error in the jury selection process. A second
trial was held in Billings Municipal Court on May 24,200 1, wherein the jury convicted Dill.
He again appealed to the District Court, which affirmed his conviction on December 10,
2003.
78 On February 12,2004, Dill filed his Notice of Appeal, sixty-three days after the date
of entry of judgment.
DISCUSSION
79 Was tlze notice of appeal zilztii?zelyJiled,tlzus preclzidiizg tlze exercise of appellate
jurisdiction ?
710 Rule 5(b), M.R.App.P., defines the time period for filing a notice of appeal in a
criminal case: "In criminal cases an appeal from a judgment entered pursuant to section 46-
18-116, Montana Code Annotated must be taken within 60 days after entry of judgment
appealed from." We have held that "[tlhis Court is without jurisdiction to hear an appeal
filed more than 60 days after judgment." State v. Rice (1996), 275 Mont. 8 1, 83, 9 10 P.2d
245,246.
111 Dill appeals from the judgment entered by the District Court in this action on
December 10,2003. Dill's notice of appeal was filed February 12,2004, sixty-three days
after the entry of the judgment.
712 The City of Billings contends Dill's appeal is not timely because he failed to file his
notice within the sixty-day period provided by Rule 5(b), M.R.App.P., and therefore, this
Court has no jurisdiction to consider Dill's appeal and must dismiss. In response Dill argues
his appeal is timely because Rule 21(e), M.R.App.P., allows an additional three days when
service of a paper is made by mail. Dill argues that because the District Court's order was
mailed to him, the appeal time was extended by three days.
-
y13 Rule 21(e), M.R.App.P., provides as follows:
Whenever a party is required or permitted to do any act within a prescribed
period after service of a paper upon such party and the paper is served by mail,
3 days shall be added to the prescribed period.
This Court explained the application of this rule in Montana Fair Housing, Inc., v. Barnes,
2003 MT 16,314 Mont. 73, 68 P.3d 653, holding that:
Rule 2 1(e) only applies to situations involving response-type pleadings--that
is, when parties are required or permitted to file a document or brief after
having had a brief or paper served upon them. When a filing deadline is
specified by the Court or when a document is required by Court rule to befiled
witlzin a specified tirlze, Rule 21(e) does not apply, and the party does not get
the benefit of an extra three days for mailing.
Barnes, (IT 4 (emphasis added).
,
714 Rule 5(b), M.R.App.P., requires an appeal from a judgment in a criminal case to be
filed "within a specified time," that is, within sixty days after entry ofjudgment. Barnes, 7 4.
As a deadline specified by rule, it is not extended by the three-day mailing provision of Rule
715 Because this appeal was filed more than sixty days after judgment was entered this
Court is without jurisdiction to hear the appeal. Rice, 275 Mont. at 83, 910 P.2d at 246.
Jurisdiction can be raised any time, and if the Court does not have jurisdiction because the
notice was not timely filed, then the Court is obligated to dismiss. Rice, 275 Mont. at 83,85,
116 Dill had sixty days from the date judgment was entered in which to appeal his
conviction of assault with bodily fluid. Because Dill .failedto file an appeal within the time
allotted, this Court has no jurisdiction to hear his appeal.
717 The appeal is dismissed.
We Concur:
A
May 3 1, 2005
CERTIFICATE OF SERVICE
I hereby certify that the attached document was sent by United States mail, prepaid, to the following
named:
'JACK E SANDS
ATTORNEY AT LAW
100 N 27TH STE 250
BILLINGS MT 59101
,HON MIKE MCGRATH ATTORNEY GENERAL
JON ELLINGSON ASSISTANT
PO BOX 201401
HELENA MT 59620- 1401
/ BRENT BROOKS
BILLINGS CITY ATTORNEY
PO BOX 1178
BILLINGS MT 59103-1178
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: A. B u & h