State v. Knox

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 OF
BOZEMAN,
P l a i n t i f f and R e s p o n d e n t ,

-vs-

KENNETH 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: $(
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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 denied, and was convicted. He appeals that
conviction. Appellant was arrested March 6, 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 that he
wanted to give the appellant a "fair chance." 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 that right is
implemented by Section 46-13-201(2), MCA. 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 for the purpose of
enforcing a constitutional right and they constitute a
legislative construction or definition of the constitutional
provisions, and must be construed fairly to accomplish that
GOUS*
result. See State v. P l c w (1942), 113 Mont. 591, 131
P.2d 262. 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 by the Fourteenth
Amendment, would be violated. 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. In Schnell, the defendant was convicted in
justice court, of driving while under the influence of
alcohol. 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
novo . . . . I t is t o a l l i n t e n t s and
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 a t 20.

It appears that Section 46-13-201(2), MCA, is

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 . A trial

de novo is a "new trial," one which does not 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 , but

arises out of an appeal. The statutory speedy trial

requirements of Section 46-13-201(2), MCA, were complied

with i n t h i s case. 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 in

city court within the six-month period permitted by the

statute.

The question then arises as to whether a trial de

novo, or "new trial," is subject to the constitutional

requirements of a speedy trial. In State v. Sanders,

(1973), 1 6 3 Mont. 209, 516 P.2d 372, this Court adopted
Standard 12-2.2(c) 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
for Criminal Justice. That standard basically provides

that, 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 , . the

time for trial should begin running from t h e d a t e of the
order granting the new trial. In Sanders, this 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 an appeal to the Montana Supreme Court.

Sanders, ( 1 9 7 3 ) , 1 6 3 Mont. a t 214, 516 P.2d 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 11, Section 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 the charge, being t h e
o n l y meaningful remedy for a violation of the important
r i g h t t o a speedy t r i a l . 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 holding
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 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. Approximately 221
d a y s of 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 of m u l t i p l e defense motions t o s u p p r e s s

and application to this Court for a writ of supervisory
control. The remaining period of time chargable to the
S t a t e appears t o be the result of "institutional delay,"
which has been considered to weigh less heavily than

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 . 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 under B a r k e r v . Wingo, I find little
prejudice to the defendant here. The d e f e n d a n t was not
incarcerated for the offense, he obtained a stay of

e x e c u t i o n of s e n t e n c e and r e t u r n o f his driver's license,

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 . 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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