No. 14209 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

L. R. BRETZ, 

Petitioner, 

-vsROGER CRIST I WARDEN I 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Pe ti toner : 

Moses, Tolliver and Wright, Billings, Montana 

Charles F. Moses argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert Keller argued, Special Assistant Attorney General, 

Submitted: June 8, 1978 

Decided: JUL 1 5 j378 

Filed: ,.,;!;;_ _ - 
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 a writ of habeas 

corpus on March 14, 1978. Petitioner is currently serving a 56 

year sentence in the State Prison. This sentence was 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 800 days elapsed from 

the date the information was filed against him and the date he 

was brought to trial. Petitioner argues that this length of 

time violated his right to a speedy trial. 

Counsel was appointed by this Court to represent petitioner. Briefs and memoranda were filed, oral argument was 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 corpus proceeding. 

Bubnash v. State (1961), 139 Mont. 645, 367 P.2d 319. Petitioner, 

in his appeal from his 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 this procedure in the past and 

relief was similarly denied. In 1975, petitioner was convicted 

of obtaining money and property by false pretenses and was 

imprisoned at the State Prison. While his conviction was on 

appeal, petitioner filed a petition for a writ of habeas corpus. 

In that petition, he claimed that his conviction was invalid because it violated 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), 

167 Mont. 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, the writ 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 original proceedings, and both 

remedies may not be pursued simultaneously. * * *" 

39 C.J.S. Habeas Corpus 813. 

The petition for writ of habeas corpus is denied. 

Chief Justice 

Judge, sitting for Mr. Justice 

Daniel J. Shea.