No. 14209 INTHE SUPREME COURT OF THE STATE OF MONTANA 1978

L. R. BRETZ, Petitioner,
-vsROGER CRISTI WARDEN I Respondent.

ORIGINAL PROCEEDING: Counselof Record: For Petitoner: Moses, Tolliverand Wright, Billings, Montana CharlesF. Moses argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana RobertKellerargued, Special AssistantAttorneyGeneral,

Submitted: June 8, 1978 Decided: 

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## j378 Filed:,.,;!;;_

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## -Mr. Chief Justice Frank 

### I. Haswell delivered the Opinion of the Court. This is an original proceeding for a writ of habeas corpus by an inmate of Montana State Prison. Petitioner seeks his release from custody on the ground that his conviction is invalid because he was denied a speedy trial. Petitioner filed a pro se petition for awrit of habeas corpus onMarch 14, 1978. Petitioner is currently serving a 56 year sentence in the State Prison. This sentencewas imposed upon petitioner's conviction of eighteen various criminal counts in Cascade County on December 13, 1976. Petitioner challenges the legality of his detention because over 800days elapsed from the date the informationwas filed against him and the date he
was brought to trial. Petitioner argues that this length of timeviolated his right to a speedy trial. Counsel was appointed by this Court to represent petitioner. Briefs and memoranda were filed,oral argumentwas heard, and the matter was submitted to the Court for decision. We deny the relief requested by petitioner. Petitioner's conviction is now on appeal to this Court. That appeal is Supreme Court Cause No. 13826. Petitioner's brief
was filed with this Court on June 8, 1978. (The State has not yet filed its answering brief in that appeal.) During oral argument, counsel for petitioner admitted that the issue of a lack of a speedy trial was being raised in petitioner's appeal from his conviction. This Court has previously adopted the rule that any error in a criminal trial, which is reviewable on appeal from the conviction, will not be considered in a habeas corpusproceeding. Bubnash

### v. State (1961), 139Mont. 645, 367 P.2d 319. Petitioner, in his appeal fromhis conviction, is alleging that his lack of
a speedy trial is reversible error. We will have to decide that issue when his appeal is submitted to this Court for a decision.At this time, we cannot decide that issue on a petition for
a writ of habeas corpus. Petitioner has attempted thisprocedure in the past and relief was similarlydenied. In 1975,petitioner was convicted of obtainingmoney and property by false pretenses and was imprisoned at the State Prison. While his convictionwas on appeal,petitioner filed a petition for a writ of habeas corpus. In thatpetition, he claimed that his conviction was invalid because itviolated the constitutional provision against double jeopardy. We held that since the double jeopardy issue could be raised on the appeal from his conviction,petitioner was not entitled, in the habeas corpus proceeding, to release from imprisonment. State ex rel. Bretz and Cline

### v. Sheriff (1975), 167Mont. 363, 539 P.2d 1191. We believe that this earlier decision,where like circumstances appeared, is controlling in regard to petitioner's current request. "Ordinarily, thewrit of habeas corpus will not be granted when there is an adequate remedy by writ of error or appeal,or by writ of certiorari. Accordingly, a petition for habeas corpus cannot be entertained during the pendency of a direct appeal from the originalproceedings, and both remediesmay not be pursued simultaneously. 

## * * *" 39 C.J.S. Habeas Corpus 813. Thepetition for writ of habeas corpus is denied.

Chief Justice

Judge, sitting for Mr. Justice Daniel J. Shea.