No. 8 9 - 3 5 3
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
THOMAS LELAND CRANE,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Russell D. Yerger; Kurt W. Kroschel & Associates,
Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
John Paulson and Kathy Seeley, Asst. Attys'. General
Richard A. Simonton, Dawson County Attorney; Marvin
F-
Hone, Deputy Co. Atty., Glendive, Montana
Submitted on Briefs: Nov. 2, 1 9 8 9
Decided: December 12, 1989
Filed: , W
,
Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from the District Court of the
Seventh Judicial District, Dawson County, Montana. The
appellant, Thomas Leland Crane, was arrested on January 17,
1988, for violation of S 61-8-401, MCA, driving under the
influence of alcohol, third offense, a misdemeanor. On
January 19, 1988, the appellant appeared before the Glendive
City Judge and pled not guilty to the charge. After numerous
delays and continuances attributable to both the appellant
and the State, the appellant was tried in District Court on
March 3, 1989, found guilty by a jury and sentenced on April
14, 1989. The appellant now appeals his conviction, his
judgment and execution of sentence being stayed pending his
appeal to this Court. We affirm.
After appellant's arrest and initial appearance in
Justice Court, an information charging him with driving under
the influence (DUI), third offense, was filed in the District
Court on January 26, 1988. The appellant made his initial
appearance with his defense attorney, Jerry D. Cook. On
February 10, 1988, following an omnibus hearing before
District Court Judge Dale Cox, trial was set for April 5,
1988. On April 4, 1988, Judge Cox entered an order, sua
sponte, vacating the April 4, 1988 date and resetting it for
April 20, 1988. On April 13, 1988, the State moved for a
continuance of the April 20, 1988 trial date because the
arresting officer was not available to testify until June 17,
1988. The State specifically requested that the court set
the trial date after June 17, 1988 but before July 17, 1988,
so the six-month statute of limitations would not be
exceeded. Upon oral order of the District Court on April 27,
1988, appellant's jury trial was set for June 28, 1988.
On June 22, 1988, the appellant, through his attorney,
Mr. Cook, filed a "Motion for Continuance and Waiver of
Speedy Trial." Mr. Cook moved the court for a continuance of
the June 28, 1988, trial date because he had another trial
scheduled for that date. The motion further stated that
"Defendant herein specifically waives any objection to speedy
trial." On June 29, 1988, the court set August 4, 1988 as
appellant's trial date.
Prior to August 4, 1988, the deputy county attorney and
Mr. Cook orally agreed that the appellant would plead guilty
to the charge after December 12, 1988. The agreement to
allow a delayed guilty plea was designed to benefit the
appellant because after December 12, 1988, more than five
years would have elapsed since appellant's first DUL
conviction. The deputy county attorney and defense counsel
believed this would reduce the administrative penalties the
appellant faced.
The record indicates nothing further happened in the
case until January 4, 1989, when the appellant filed a
Substitution of Counsel, Consent and Notice substituting
attorney, Russell Yerger, for Jerry Cook.
On January 11, 1989, at the State's request, the trial
judge set February 3, 1989 as appellant's date for his jury
trial. The record indicates through a minute entry made on
February 1, 1989, that "Due to severe weather conditions and
at the request of defense counsel" the trial was vacated and
continued to March 3, 1989. Prior to jury trial, which was
held March 3, 1989, the appellant's counsel filed a "Motion
for Substitution of District Judge;" "Motion to Dismiss for
Lack of Speedy Trial;" and moved for a continuance of the
trial date until a decision on his motion to dismiss was
entered and filed. Judge Roy E. Rodeghiero assumed
jurisdiction on February 23, 1989, heard and denied the
appellant's motion to dismiss on March 1, 1989, and heard and
denied the appellant's renewed motion to dismiss on March 3,
1989. On March 3, 1989, the jury found the appellant guilty
of the offense of DUI, a misdemeanor.
The sole issue before this Court is whether the
District Court erroneously denied the appellant's motion to
dismiss for lack of speedy trial.
Appellant argues that every person accused of a crime
is guaranteed the fundamental right to a speedy trial by the
Sixth Amendment to the United States Constitution, which is
made applicable to the States by virtue of the Fourteenth
Amendment. State v. Chavez (1984), 213 Mont. 434, 691 P.2d
1365. This right in Montana is also secured by Sec. 24, Art.
11, of the Montana Constitution. State v. Ackley (1982), 201
Mont. 252, 653 P.2d 851. When considering misdemeanor
charges, such as the charge aqainst the appellant here, these
constitutional requirements are implemented by
§ 46-13-201(2), MCA, which mandates a six-month statute of
limitations in which persons must be brought to trial.
It is the appellant's position that under the terms of
§ 46-13-201 (2), MCA, his right to a speedy trial would have
expired on July 17, 1988, but for appellant's counsel's June
22, 1988 motion for continuance because of conflicting trial
date. Appellant argues that the waiver of speedy trial date
of June 22, 1988, was not specific in scope or length at the
time of the waiver, and was not set forth in the motion for
continuance. Appellant's counsel did not indicate that the
waiver was nothing hut a waiver of a right to a speedy trial
with respect to the day of the conflicting trial date.
According to the appellant, his speedy trial rights
evaporated on either of the following dates: December 22,
1988 (six months after the date of the appellant's motion for
continuance); or September 20, 1988 (45 days after the August
4, 1988 trial date which had been set as a result of
appellant's motion).
The respondent State argues that the appellant was not
denied his right to a speedy trial under B 46-13-201(2), MCA,
in that it does not apply in this case. Section
46-13-201 (2), MCA, states:
(2) The court, unless good cause to the
contrary is shown, must order the
prosecution to 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.
The above section mandates dismissal of a misdemeanor
charge not brought to trial within six months if the
defendant has not asked for a postponement, and if the State
has not shown good cause for the delay. While this Court has
not specifically ruled on the applicability of this section
when a defendant has asked for a postponement, the language
of the statute makes it clear that the six-month limitation
does not apply in this case.
In construing a statute, it is our function as an
appellate court to ascertain and declare what in terms or in
substance is contained in a statute and not insert what has
been omitted. Dunphy v. Anaconda (1968), 151 Mont. 76, 438
P.2d 660. In State v. Ronningen (1984), 213 Mont. 358, 691
P.2d 1348, this Court stated: "But the statute is clear and
the facts are clear. If the defendant requests the
postponement the six-month trial deadline does not apply."
Ronningen, 691 P.2d at 1350. Here the appellant's trial was
postponed upon his own application of June 22, 1988, before
the six-month time limit had expired. We find no statute
which allows the six-month period to be extend-ed after a
delay has been caused by the appellant. Thus, we hold that
§ 46-13-201(2), MCA, has no application in the instant case.
F e find the length of the delay is what triggers a
7
speedy trial inquiry. Here there were 410 days between the
appellant's arrest and his jury trial. However, in
determining whether the appellant was denied his right to a
speedy trial, that period of time from the date of arrest and
the length of the delay before trial are not interchangeable
terms. "Length of delay refers only to the time period
chargeable to the State." State v. Wirtala (Mont. 1988), 752
P.2d 177, 180, 45 St.Rep. 596, 599. In State v. Grant (Mont.
1987), 738 P.2d 106, 109, 44 St.Rep. 994, 997, this Court
noted that any delay in bringing a defendant to trial which
is attributable to defendant's own actions must be deducted
from the total delay for purposes of determining whether
speedy trial rights were violated. Also, " Idlelays in
bringing the defendant to trial caused or consented to by
defendant are copsidered to constitute a waiver of the right
to be tried within the time fixed by statute or required by
the constitution. (Citations omitted.)" State v. Robbins
(1985), 218 Mont. 107, 116, 708 P.2d 227, 233.
When appellant, through his counsel, moved on June 22,
1988 for a continuance of his trial date, 164 days had
elapsed from the date of his arraignment. He coupled his
motion for continuance with a waiver of any objection on the
grounds of speedy trial. The rescheduled trial date of
August 4, 1988 took the case beyond the six-month period,
which was solely the responsibility of the appellant. The
period from June 22 to August 4 was 43 days.
The further postponement of the trial date was 130
days, from August 4, 1988 to December 12, 1988. This delay
also was caused or consented to by the appellant. He is
therefore responsible for, or waived objection to, a total of
339 days of the total delay. The remaining time, consisting
only of 73 days, is attributable to the State.
While the appellant argues that the 130-day delay
resulted from a continuing plea bargaining process and is
attributable to the State, the evidence is uncontroverted
that in order to benefit his client, appellant's attorney
consented to delaying the trial until after December 12,
1988. We note that shortly after the time set in December,
1988, for the entrance of plea, the appellant obtained new
counsel. On appeal, new counsel alleges that inasmuch as the
agreement to delay was for his client's benefit, this delay
was not a written order nor signed by either the appellant,
his counsel or the deputy county attorney, and therefore the
delay should be counted against the State and not against his
client. We disagree.
In State v. Dinndorf (1983), 220 Mont. 308, 658 P.2d
372, a case involving the withdrawal of a guilty plea, the
county attorney agreed with the defendant not to make a
sentencing recommendation. However, just before the hearing,
the county attorney recommended at the sentence hearing a
ten-year sentence. The district court denied the withdrawal
stating there was nothing on record to support the
conversations between the defense attorney and the county
attorney. In that case this Court remanded the case back for
resentencing noting the district court erred in not
considering other factors including an oral agreement or a
promise. This Court held that the district court improperly
denied the motion to withdraw and remanded the case for
resentencing. The same can be said in this case.
The change of defense counsel after one attorney had
represented the appellant for nearly an entire year and had
in effect lulled the county attorney's office into believing
that in order to benefit the appellant they would wait until
December t o enter a plea, it is not necessary i.n this case tn
have a written signed aqreement of the parties.
Affirmed.
We concur: