STATE v KNOX

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NO. 83-01 I N TIIE SUPREME COURT O THE STATE O F M N A A F OTN 1953 STATE O MONTANA, F and CITY O F BOZEMAN, P l a i n t i f f and R e s p o n d e n t , -vsKENNETH CHARLES KNOX , D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f G a l l a t i n , The I I o n o r a b l e W. W. L e s s l e y , J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: J . C o r t H a r r i n g t o n , J r . a r g u e 2 , H e l e n a , Montana F o r Respondent : Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana James M. S c h e i e r a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a Mary Crumbaker-Smith, Bozeman, Montana S u b m i t t e d : O c t o b e r 28, 1 9 8 3 D e c i d e d : J a n u a r y 2 3 , 1984 Filed: $( /) '' g r' -- Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the District Court of the Eighteenth Judicial District of the State of Montana in and for the County of Gallatin, following the conviction of appellant, for driving under the influence of alcohol. Appellant was first convicted in the city of Bozeman, by a city court jury. He appealed to the District Court for a trial de novo, made motions to exclude evidence which were denied, later moved for dismissal for lack of a speedy trial which was conviction. denied, and was convicted. Appellant was arrested He March appeals 6, that 1981, and charged with driving under the influence of alcohol. He testified he had one beer and four scotch drinks over a period of a couple of hours, prior to his arrest. He was stopped a few blocks from his home by the city police and was taken to the police department, where he was given a breath-alcohol test approximately one half-hour after his arrest. The appellant was given several breath-alcohol tests after being taken to the police department, many of which were thrown away because the officer testified wanted to give the appellant a "fair chance." that he The second test he was given had a reading of .I108 and in addition he was tested to a .135%. After being tested, the appellant was driven home by the police department. He then called a friend who took him to the police station for a retest. He was refused a retest, but was told he could go to the hospital for a blood test. At 11:35 p.m., some three hours after he was first arrested, the blood test showed an alcohol blood content of Five issues were presented in this appeal. However, in view of the fact that the one controlling issue that necessitates a reversal and dismissal is the fact that the defendant's right to a speedy trial was violated, the other issues raised on this appeal will not be discussed. The appellant's constitutional right to a speedy trial is guaranteed by the Fourteenth Amendment of the United States Constitution, and by Article 11, Section 24 of the Constitution of Montana; furthermore implemented by Section 46-13-201(2), MCA. that right is While Article 11, Section 24 of the Montana Constitution does not specify the exact period of time that must elapse before the right to a speedy trial has been violated, the legislature did provide and did implement Article 11, Section 24, by specifying that unless good cause is shown, a misdemeanor must be dismissed if not brought to trial within six months, see Section 46-13-201(2), MCA, which provides: "The court, unless good cause to the contrary is shown, must order the prosecution be dismissed if a defendant whose trial has not been postponed upon his application is not brought to trial within 6 months after entry of plea upon a complaint, information, or indictment charging a misdemeanor." These statutes were all enacted enforcing a constitutional right for the purpose of and they constitute a legislative construction or definition of the constitutional provisions, and must be construed fairly to accomplish that GOUS* result. P.2d 262. See State v. P l c w (1942), 113 Mont. 591, 131 In the case of Barker v. Wingo (1972), 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101, 112-113, the court declined to specify a period of time after which the right to a speedy trial, guaranteed Amendment, would be violated. by the Fourteenth It did recognize the right of the legislature to set such a specified period of time, as has been done in Montana. In this case the appellant appealed his city court conviction on July 10, 1981. A trial date was not set in the District Court until August 19, 1982, and trial was not held until November 15, 1982. Plaintiff argues that conceding for purposes of argument that part of this time may be attributable to the appellant and not to the State, the six-month period prescribed by Section 46-13-201(2), MCA, elapsed some time between January 6, 1982, the date the District Court denied the motion to suppress, and July 20, 1982, the date the appellant made a motion to dismiss the charge for failure to bring the case to trial within six months. The State admits that a period of 195 days are so-called "dead time" or arose as a result of unintentional "institutional delays" and are therefore inexplainable. The appellant argues that the opinion of this Court in State v. Schnell (1939), 107 Mont. 579, 88 P.2d 19, is internally inconsistent, and was overruled by legislative action in its enactment of Section 46-13-201(2), MCA. Not so! The Schnell decision reveals that it is still valid, and the reasoning is directly applicable to the facts in the instant case. justice alcohol. In Schnell, the defendant was convicted in court, of driving while under the influence of He appealed his conviction to the district court, and was again found guilty in a trial de novo. He appealed t o t h e Montana Supreme C o u r t , and on t h e s p e e d y t r i a l i s s u e t h e Court held a s follows: "The c r i m e was a l l e g e d t o h a v e b e e n c o m m i t t e d o n December 23, 1 9 3 5 . On December 3 0 , 1 9 3 5 , d e f e n d a n t was t r i e d i n j u s t i c e c o u r t and found g u i l t y . The a p p e a l was t a k e n on December 31. On January 13, 1937, d e f e n d a n t f i l e d h i s motion t o d i s m i s s under s e c t i o n 12223, R e v i s e d Codes. The r e q u i r e m e n t s of t h a t s e c t i o n and o f s e c t i o n 16 o f A r t i c l e I11 of our C o n s t i t u t i o n , giving t o t h e accused t h e r i g h t of a speedy t r i a l , were m e t by t h e t r i a l i n t h e j u s t i c e c o u r t . On a p p e a l t o t h e d i s t r i c t c o u r t t h e defendant does n o t have t h e b e n e f i t of s e c t i o n 1 2 2 2 3 . On a p p e a l t h e t r i a l i s d e I t is t o a l l i n t e n t s and novo p u r p o s e s a s e c o n d o r new t r i a l . 'Where t h e a c c u s e d h a s been t r i e d p r o m p t l y and c o n v i c t e d , and on h i s own m o t i o n t h e c o n v i c t i o n i s s e t a s i d e and a new t r i a l o r d e r e d , he w i l l n o t be e n t i t l e d t o a d i s c h a r g e under t h e s t a t u t e because of the delay of t h e prosecution i n trying him t h e s e c o n d t i m e * * * i t b e i n g h e l d that the constitutional or statutory r e q u i r e m e n t s a r e s a t i s f i e d by a s p e e d y t r i a l . "' . . . . S c h n e l l , 1 0 7 Mont. a t 5 8 2 , 88 P.2d appears It that a t 20. Section 46-13-201(2), MCA, i n a p p l i c a b l e t o a t r i a l d e novo i n d i s t r i c t c o u r t . de is novo a "new trial," one which does not A trial strictly s p e a k i n g , a r i s e o u t o f e n t r y o f p l e a upon a c o m p l a i n t , arises out requirements of of an appeal. Section with i n t h i s case. city court within The statutory 46-13-201(2), speedy were MCA, six-month period permitted but trial complied The d e f e n d a n t was b r o u g h t t o t r i a l the is in by the trial de statute. The novo, or question "new requirements (1973), of then trial," a 1 6 3 Mont. arises is speedy 209, as subject trial. 516 P.2d to whether to the In State 372, this a constitutional v. Sanders, Court adopted Standard 12-2.2(c) for Criminal that, time order of t h e A m e r i c a n Bar A s s o c i a t i o n S t a n d a r d s Justice. That standard basically provides i n c a s e s o f a p p e a l , o r a n o r d e r f o r a new t r i a l , . for trial granting should begin the new running trial. from t h e d a t e of Sanders, In this the the Court a p p l i e d t h a t s t a n d a r d i n t h e c o n t e x t o f a remand f o r a new trial following Sanders, an appeal ( 1 9 7 3 ) , 1 6 3 Mont. to the a t 214, Montana Supreme 516 P.2d Court. a t 375. The r a t i o n a l e h a s - y e t b e e n e x t e n d e d t o c o v e r a t r i a l d e novo not in d i s t r i c t court f o l l o w i n g a n a p p e a l from a lower court c o n v i c t i o n , and t h i s C o u r t ' s h o l d i n g i n S c h n e l l h a s n o t b e e n overruled. W hold t h a t t h e a p p e l l a n t ' s r i g h t t o a speedy t r i a l e guaranteed by Article Section 11, 24 of the Montana C o n s t i t u t i o n was v i o l a t e d and i t n e c e s s i t a t e s a r e v e r s a l o f t h e c o n v i c t i o n and t h e d i s m i s s a l o f o n l y meaningful remedy r i g h t t o a speedy t r i a l . for a the charge, violation of the being t h e important B a r k e r v . Wingo, s u p r a . The j u d g m e n t o f t h e D i s t r i c t C o u r t i s r e v e r s e d and t h e c a u s e is d i s m i s s e d . 1 W e concur: %4&"&q Chief J u s t i c e Mr. J u s t i c e L.C. Gulbrandson d i s s e n t i n g . I respectfully dissent. I concur with t h e m a j o r i t y t h a t t h i s C o u r t ' s i n S t a t e v. S c h n e l l ( 1 9 3 9 ) , 1 0 7 Mont. 5 7 9 , 88 P.2d holding 19, has n o t been o v e r r u l e d , b u t I do n o t a g r e e t h a t , under Barker v. Wingo, t h e c h a r g e s h o u l d b e d i s m i s s e d . The d e l a y h e r e a p p e a r s t o b e s u f f i c i e n t t o s h i f t t o the State the burden of e x p l a i n i n g t h e d e l a y and s h o w i n g absence of prejudice t o t h e defendant. d a y s of application control. The of m u l t i p l e defense motions t o s u p p r e s s to this has been a writ Court the for period remaining S t a t e appears t o be which 221 the delay are directly attributable t o the f i l i n g and c o n s i d e r a t i o n and Approximately of time result of "institutional considered to weigh i n t e n t i o n a l d e l a y s by t h e S t a t e . of supervisory chargable less to the delay," heavily than Although p r e j u d i c e t o t h e d e f e n d a n t h a s been i d e n t i f i e d a s one o f t h e most i m p o r t a n t considerations prejudice to incarcerated e x e c u t i o n of under B a r k e r v . Wingo, the defendant for the here. offense, The he s e n t e n c e and r e t u r n o f I find d e f e n d a n t was obtained a his driver's and n o n e o f h i s r i g h t s w e r e c u r t a i l e d . little not stay of license, The d e f e n d a n t d o e s claim t h a t a defense witness died during t h e interim, but it i s o b v i o u s t h a t t h e w i t n e s s was known t o t h e d e f e n d a n t a t t h e t i m e o f t h e f i r s t t r i a l , b u t was n o t c a l l e d a s a w i t n e s s for good reasons. That witness died 64 days after the d e f e n d a n t appealed h i s c i t y c o u r t c o n v i c t i o n , b u t t e n months before t h e defendant a s s e r t e d h i s r i g h t t o a speedy t r i a l . I would affirm the District Court's ruling that the d e f e n d a n t was n o t d e p r i v e d o f h i s r i g h t t o a s p e e d y t r i a l . / '

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