No. 84-338
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
CARL 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
Mr. 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.
F o l l o w i n g a. j u r y trial i n the Sixteenth Judicial D i s -
t r i c t C o u r t o f Montana, 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 con-
s 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
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 . A 1 1 motions w e r e denied.
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 con-
tinuance. W e r e v e r s e and remand 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 was filed December 2, 1983, charging
defendant with the offense of sexual intercourse without
consent. 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-
b e r 29, 1983. Defendant r e t a i n e d M r . Kenneth W i l s o n a s h i s
a t t o r n e y and on December 9, 1-983, p l e d not guilty to the
charge. Mr. 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 that hearing, May 2, 1984, defendant released
Mr. 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 . Anthony S a v a g e ,
a n a t t o r n e y i n S e a t t l e , Washington, and r e q u e s t e d M r . Savage
to represent him. Savage declined to do so, 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 the case. Defendant moved for a
c o n t i n u a n c e on May 8 . The f o l l o w i n g d a y , M r . 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 , 1984. Over
t h e weekend, defendant attempted to secure M r . C h a r l e s F.
Moses a s h i s a t t o r n e y , t o no a v a i l . The morning o f t r i a l ,
defendant appeared without an attorney and moved for a con-
tinuance. 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. The court denied the motion
but agreed to appoint Mr. 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. The
motion was denied and the trial proceeded. 01
1 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 section
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 inter-
ests 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."
Thus our first determination becomes the diligence of
defendant. The State argues that we should look at the
overall 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." Blakeslee, 131 Mont. at 51, 306 P.2d at
1105. 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. His
efforts were thwarted due to lack of time, not lack of
diligence.
Defendant also expressed a willingness to waive his
right to a speedy trial. 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 constitu-
tional 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.