STATE v LUNDBLADE
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No. 84-338 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 STATE OF MONTANA, Plaintiff and Respondent, -vsCARL ROGER LUNDBLADE, Defendant and Appellant. APPEAL FROM: District Court of the Sixteenth Judicial District In and for the County of Rosebud, The Honorable Alfred B. Coate, Judge presiding. COUNSEL OF RECORD: For Appellant: Moses Law Firm; Jay F. Lansing, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana John Forsythe, County Attorney, Forsyth, Montana Submitted on Briefs: October 18, 1984 Decided: November 28, 1984 Clerk J u s t i c e F r a n k B. M o r r i s o n , Jr. d e l i v e r e d t h e o p i n i o n o f t h e Court. Mr. F o l l o w i n g a. j u r y trial t r i c t C o u r t o f Montana, i n the Sixteenth Judicial D i s - d e f e n d a n t C a r l Roger L u n d b l a d e was c o n v i c t e d o f t h e o f f e n s e o f s e x u a l i n t e r c o u r s e w i t h o u t cons e n t and s e n t e n c e d t o t e n y e a r s i n t h e Montana S t a t e P r i s o n , w i t h f i v e y e a r s suspended. Defendant r e q u e s t e d a continuance A 1 1 motions w e r e denied. o f h i s t r i a l on s e v e n o c c a s i o n s . D e f e n d a n t now a p p e a l s t h e d e n i a l s o f h i s m o t i o n s f o r a conW e r e v e r s e and remand tinuance. t h e cause t o t h e D i s t r i c t C o u r t f o r a new t r i a l . An information filed charging The o f f e n s e a l l e g e d l y o c c u r r e d t h e n i g h t o f Novem- 9, intercourse without Kenneth W i l s o n a s h i s Defendant r e t a i n e d M r . a t t o r n e y and on December Mr. sexual 1983, consent. charge. of 2, with 1983. offense December defendant b e r 29, the was 1-983, p l e d not guilty to the Wilson c o n t i n u e d t o r e p r e s e n t d e f e n d a n t u n t i l a d i s a g r e e m e n t a r o s e between t h e two c o n c e r n i n g t h e h a n d l i n g o f a h e a r i n g o n t h e S t a t e ' s m o t i o n t o f o r f e i t bond. Two d a y s after released Mr. that hearing, May 2, 1984, Wilson a s h i s a t t o r n e y . On May 3 , 1984, defendant c o n t a c t e d M r . a n a t t o r n e y i n S e a t t l e , Washington, to defendant represent him. Savage Anthony S a v a g e , and r e q u e s t e d M r . declined to do so, Savage unless the D i s t r i c t C o u r t would g r a n t a c o n t i n u a n c e t o a l l o w him s u f f i - cient time to prepare c o n t i n u a n c e on May 8 . the case. Defendant The f o l l o w i n g d a y , M r . moved for a Wilson f i l e d h i s motion t o withdraw a s counsel f o r defendant and requested. t h e t r i a l be vacated i n order t o provide s u b s t i t u t e counsel with s u f f i c i e n t t i m e t o prepare t h e case. Wilson's motion t o w i t h d r a w was g r a n t e d and d e f e n d a n t ' s m o t i o n f o r a c o n t i n u a n c e was d e n i e d o n May 11, 1984. T r i a l was s e t t o b e g i n on Monday, May 1 4 , t h e weekend, defendant Moses a s h i s a t t o r n e y , attempted to t o no a v a i l . secure M r . 1984. Over C h a r l e s F. The morning o f t r i a l , defendant appeared without an attorney and moved for a continuance. The motion was denied. Voir dire commenced and a jury was selected and sworn on the morning of May 14, 1984. One of the selected jurors had a sister whom had been sexually assaulted. At the noon recess defendant again moved for a continuance and waived his right to a. speedy trial. He further stated that he was unable to afford an attorney. but agreed to appoint Mr. The court denied the motion Garry Bunke as defendant's attorney. Mr. Bunke accepted the case and appeared as defendant's counsel after the noon recess on May 14, 1984. Mr. Bunke moved for a continuance on the ground that defendant had not contacted him until 11:30 a.m. the morning of trial. motion was denied and the trial proceeded. 01 1 The May 16 , 1984, the jury found defendant guilty of the offense charged. The singular issue on appeal is whether the District Court abused its discretion in refusing to grant defendant's motion for a continuance of the trial. Motions for a continuance are governed by 46-13-202, MCA, which states: "Motion for a continuance. (1) The defendant or the state may move for a continuance. If the motion- is made more than 30 days after arraignment or at any time after ~tria:Lha:; becrun, the court may require that it be supported by affidavit. (2) The court may upon the motion of either party or upon the court's own motion order a continuance if the interests of justice so require. ( 3 ) All motions for continuance are addressed to the discretion of the trial court and sha-ll be considered in the light of the diligence shown on the part of the movant. This section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the state to a speedy trial." section Thus our first determination becomes the diligence of defendant. overall The State argues that we should look at the diligence of defendant in determining over a six-month period of time that he and his attorney, Kenneth Wilson, were incompatible. However, it was not until the April 30, 1984, hearing that defendant was made fully aware of that incompatibility. The trial judge recognized it when he agreed to allow Mr. Wilson to withdraw as defendant's attorney. The same circumstances existed in State v. Blakeslee (1957), 131 Mont. 47, 306 P.2d 1103, where we held that given such an incompatibility, "it is of no moment how much time the defendant and his original attorney had had to prepare for trial." 1105. Blakeslee, 131 Mont. at 51, 306 P.2d at The diligence we must look to is that of defendant once he recognized the incompatibility. Defendanti efforts s to secure new counsel were as diligent as possible. efforts were His thwarted due to lack of time, not lack of diligence. Defendant also expressed right to a speedy trial. a willingness to waive his In response, the trial judge stated that such a waiver did nothing to protect the State's right to a speedy trial. However, "[wlhile there is no doubt that the State has a right to a speedy trial, the defendant's right to a fair trial must take precedence over the State's right -- especially when the defendant has waived his right to a. speedy trial as is the case here." State v. Sotelo (Mont. 1984), 679 P.2d 779, 782, 41 St.Rep. 568, 571. Defendant's right to a fair trial includes his constitutional right to appear and defend in person and by counsel. Mont. Const. Art. 11, Section 24. In giving this right effect, it is not sufficient to merely appoint an attorney. That attorney must be granted sufficient time to both become familiar with and prepare defendant's case. "The rule which gives him the right to counsel also means that counsel shall be given a reasonable time to prepare before trial." Blakeslee, 131 Mont. at 54, 306 P.2d at 1106. Finally, the denial of a motion for a continuance cannot be reversed absent a showing of resultant prejudice to the defendant. State v. Kirkland (19791, 184 Mont. 229, 2 3 5 , 602 P.2d 586, 590. In this case, requiring defendant to go to trial and conduct voir dire without counsel and then to continue trial with counsel who was denied any time in which to prepare, denied defendant his constitutional right to a fair trial. That denial is sufficient prejudice to warrant a finding of abuse of discretion by the trial jud-ge. State v. Bradford (1978), 175 Mont. 545, 549, 575 P.2d 83, 86. Defendant's conviction is reversed and this cause is We concur: ~ ~ d n Y Q @& \u R Chief Justide Justices Mr. Justice L. C. Gulbrandson: I concur in the result.
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