STATE v KELLY

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NO. 82-422 I N T H E SUPREME C O U R T OF THE STATE OF MONTANA 1983 STATE OF MONTANA, Plaintiff and Respondent, vs. JAMES PATRICK KELLY, ANTHEL L. B R O W N , Defendants and A p p e l l a n t s . Appeal from: Counsel o f D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t , I n and For t h e County o f Powell H o n o r a b l e Mark P . S u l l i v a n , J u d g e p r e s i d i n g . Record: For Appellants: C. F. Mackay, Anaconda, Montana For Respondent: H o n o n a b l e Mike G r e e l y , A t t o r n e y G e n e r a l , Ted M i z n e r , C o u n t y A t t o r n e y , D e e r L o d g e , S u b m i t t e d on b r i e f s : Decided: H e l e n a , Montana Montana February 10, 1983 March 1 7 , 1 9 8 3 Justice Court. Mr. John Sheehy C. delivered the Opinion of Defendants were c o n v i c t e d i n a nonjury t r i a l of from t h e Montana the escape They w e r e s e n t e n c e d by t h e S t a t e Prison. D i s t r i c t Court of t h e T h i r d J u d i c i a l D i s t r i c t , Powell County, to four additional consecutively. years in prison, to be served. On a p p e a l , d e f e n d a n t s c l a i m t h e y w e r e d e n i e d t h e r i g h t t o a speedy t r i a l . The d e f e n d a n t s e s c a p e d from t h e Montana S t a t e P r i s o n on F e b r u a r y 1 5 , 1-982, and were a p p r e h e n d e d on F e b r u a r y 20, 1982. On March 11, information 1982, the Powell County charging the defendants Attorney with filed escape, an and the d e f e n d a n t s p l e d " n o t g u i l t y " on March 1 8 , 1982. On t h a t same day, Judge Judge the S u l l i v a n assumed A p r i l 30, A d e f e n d a n t s moved for substitution jurisdiction of on A p r i l 5, Boyd. 1982. On 1 9 8 2 , t h e d e f e n d a n t s moved f o r a change o f v e n u e . h e a r i n g was h e l d , 1982. for and t h e m o t i o n was d e n i e d on J u l y 29, On A u g u s t 1 6 , 1 9 8 2 , J u d g e S u l l i v a n s e t a t r i a l d a t e September 15, 1982, the d e f e n d a n t s moved t o d i s m i s s f o r l a c k o f a s p e e d y t r i a l . The m o t i o n was d e n i e d . 1982. On September 13, On September 1 5 , 1 9 8 2 , a s t i p u l a t i o n o f f a c t s was s u b m i t t e d t o t h e D i s t r i c t C o u r t . On t h a t d a y , t h e d e f e n d a n t s w e r e found g u i l t y o f e s c a p e . From t h e d a t e t h a t t h e defendants w e r e arrested u n t i l t h e i r t r i a l d a t e , 207 d a y s e l a p s e d . A p r e t r i a l d e l a y of 207 days i s s u f f i c i e n t l y long t o t r i g g e r a speedy t r i a l i n q u i r y and s h i f t t o t h e s t a t e t h e b u r d e n o f e x p l a i n i n g t h e d e l a y and showing a b s e n c e s o f p r e j u d i c e . Mont. 334, 599 P.2d 368. S t a t e v. Freeman (1-979), 1 8 3 In this instance, the State explained that a good portion of the delay was attributable to the defendants. By making motions for substitution of judge and change of venue, the defendants caused a delay of 108 although the defendants were day^. merely In such a case, asserting their procedural rights, the delay caused by the defendants does n.ot weigh against the State. Freeman, 599 P.2d at 371. If the delay caused by the defendants is deducted from the total delay of 207 days, only 99 days remain that could be attributable to the State. This is clearly within the permissible limits established by this Court. Shurtliff (1980), Mont . , Cf. State v. 609 P.2d 303, 37 St.Rep. 713 (382 day delay, caused primarily by the defendant, was not unreasonable); State v. Nelson (1978), 178 Mont. 280, 583 P.2d 435 (8 month delay, caused by defendant's substitution of judges, and other motions, was not unreasonable). Since defendants no were evidence was prejudiced presented by to show the delay, and that the the delay attributed to the State was reasonable, the judgment of the District Court is affirmed. We Concur: ~*&-J~*~& Chief Justice

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