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: 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 .
Counsel o f 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 , H e l e n a , Montana
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 , Montana
S u b m i t t e d on b r i e f s : February 10, 1983
Decided: March 1 7 , 1 9 8 3
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Defendants were c o n v i c t e d i n a nonjury t r i a l of escape
from t h e Montana S t a t e Prison. They w e r e s e n t e n c e d by t h e
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 years in prison, to be served.
consecutively. 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, 1982, the Powell County Attorney filed an
information charging the defendants with escape, 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, the d e f e n d a n t s moved for substitution of Judge Boyd.
Judge S u l l i v a n assumed jurisdiction on A p r i l 5, 1982. On
A p r i l 30, 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 .
A h e a r i n g was h e l d , and t h e m o t i o n was d e n i e d on J u l y 29,
1982. 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
for September 15, 1982. On September 13, 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 . 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 . S t a t e v. Freeman (1-979), 1 8 3
Mont. 334, 599 P.2d 368.
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 day^. In such a case,
although the defendants were merely 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. Cf. State v.
Shurtliff (1980), Mont . , 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 no evidence was presented to show that the
defendants were prejudiced by the delay, and the delay
attributed to the State was reasonable, the judgment of the
District Court is affirmed.
We Concur:
~*&-J~*~&
Chief Justice