State v. Chapman

2006 MT 268N

• Court: Montana Supreme Court
• Decided: October 24, 2006
• Docket: 05-384
• Status: Published

Opinion

No. 05-384

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 268N

STATE OF MONTANA,

Plaintiff and Respondent,

v.

ALLISON CHAPMAN,

Defendant and Appellant.

APPEAL FROM: The District Court of the Twelfth Judicial District, In and For the County of Chouteau, Cause No. DC 2004-05, Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Allison Chapman (pro se), Geraldine, Montana

For Respondent:

Hon. Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Attorney General, Helena, Montana

Stephen A. Gannon, Chouteau County Attorney, Fort Benton, Montana

Submitted on Briefs: September 13, 2006

Decided: October 24, 2006

Filed:

__________________________________________ Clerk Justice James C. Nelson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document, its case title, Supreme Court

cause number and disposition shall be included in this Court's quarterly list of noncitable

cases published in the Pacific Reporter and Montana Reports.

¶2 Allison Chapman, pro se, appeals from the Judgment of Conviction and

Sentencing Order entered by the District Court for the Twelfth Judicial District, Chouteau

County, finding Chapman guilty of exceeding the daytime speed limit and speeding in a

construction zone. Because Chapman failed to comply with the Montana Rules of

Appellate Procedure, we dismiss this appeal with prejudice to the merits.

Background

¶3 On October 14, 2003, Chapman was cited for exceeding the daytime speed limit, a

misdemeanor, in violation of § 61-8-303, MCA; speeding in a construction zone, a

misdemeanor, in violation of § 61-8-314, MCA; failure to stop at a stop sign, a

misdemeanor, in violation of § 61-8-344, MCA; and careless driving, a misdemeanor, in

violation of § 61-8-302, MCA. Chapman was convicted of the two speeding offenses

following a bench trial in justice court. After filing an appeal de novo in the District

Court, Chapman was convicted by a jury of both offenses. She now appeals to this

Court.

¶4 After filing a timely notice of appeal, Chapman filed a motion for payment of the

trial transcript by the State asserting that she “does not have $400.00 at this time, and will

2 not have within the next two years or more.” The District Court denied Chapman’s

motion. This Court subsequently denied Chapman’s repetitive motions requesting

payment of the transcript at the State’s expense. We gave Chapman until August 31,

2005, to order the transcript. Chapman has not complied with our Order.

¶5 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions.

¶6 Chapman has a duty to provide this Court “with a record sufficient to enable it to

rule upon the issues raised.” M. R. App. P. 9(a). This rule also provides that “[f]ailure to

present the court with a sufficient record on appeal may result in dismissal of the appeal

and/or the imposition of some other appropriate sanction.” M. R. App. P. 9(a). Chapman

did not supply this Court with a transcript of the District Court proceedings as part of her

appeal, nor did she otherwise comply with M. R. App. P. 9.

¶7 Moreover, Chapman improperly relies on matters which are not part of the record

below, and she fails to provide this Court “with citations to the authorities, statutes and

pages of the record relied on” as required by M. R. App. P. 23(a)(4). As the State notes

in its brief on appeal, “[i]t is the appellant’s burden to establish error by a district court

and such error cannot be established in the absence of legal authority.” State v. Bailey,

2004 MT 87, ¶ 26, 320 Mont. 501, ¶ 26, 87 P.3d 1032, ¶ 26 (citing State v. Clausell, 2001

MT 62, ¶ 48, 305 Mont. 1, ¶ 48, 22 P.3d 1111, ¶ 48).

3 ¶8 As a result of Chapman’s failure to comply with the Montana Rules of Appellate

Procedure, we are unable to address the merits of the arguments which she raises on

appeal. Therefore, this appeal is dismissed with prejudice to the merits.

/S/ JAMES C. NELSON

We Concur:

/S/ JOHN WARNER /S/ W. WILLIAM LEAPHART /S/ JIM RICE /S/ BRIAN MORRIS