NO. 87-509 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsSCOTT A. WOMBOLT, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Charles A. Bradley, Deputy County Attorney 

For Respondent: 

Arthur J. Thompson; Thompson and Sessions, 

Billings, Montana 

Submitted on Briefs: March 24, 1988 

Decided: April 21, 1988 
Mr. Justice L. C. Gulbrandson delivered the Opi-nion of the 

Court. 

The State appeals from an order of the District Court 

of the Thirteenth Judicial District, County of Yellowstone, 

dismissing an information charging defendant/respondent Scott 

A. Wombolt (Wombolt) with arson. The dismissal was based on 

failure to provide a speedy trial. We affirm. 

The State raises but one issue: 

Did the District Court abuse its discretion in granting 

Wombolt's motion to dj-smiss for failure to provide a speedy 

trial? 

Wornbolt was arrested and jailed on March 27, 1987. He 

was charged with the crime of felony arson. A preliminary 

hearing was scheduled for April 16, 1987 when Wombolt 

appeared in justice court on March 31, 1987. At the March 31 

hearing, and before any examination began, Wombolt invoked 

his statutory right to close the proceedings to the press and 

public pursuant to 5 46-10-201, MCA. Accordingly, the court 

closed the preliminary examination to the public and press. 

The Billings Gazette (Gazette) commenced a series of 

legal proceedings, ultimately culminating in an August 5, 

1987, Federal District Court ruling that the closure statute 

was unconstitutional. Therefore, the preliminary examination 

did not occur until August 25, 1987. The State filed an 

information in District Court on September 1, 1987 and trial 

was set for October 27, 1987. Defendant asserted his right to 

a speedy trial at an October 2, 1987 omnibus hearing. 

Wombolt formally moved the court for dismissal of the action 

on October 5, 1987 and argued that he had previously made 

five unsuccessful attempts to have his bail reduced. The 

court entered it order of dismissal on October 23, 1987. As 

the District Court noted, Wombolt would have commenced his 
214th day of incarceration on October 27, 1987, the scheduled 

date of trial. 

The law in this area is clear. Our most recent 

statement was in State v. Waters (Mont. 1987), 743 P.2d 617, 

Any person accused of a crime is 

guaranteed the right to a speedy trial by 

the Sixth Amendment to the United States 

Constitution and Art. 11, S 24 of the 

Montana Constitution. The right to a 

speedy trial is fundamental. It attaches 

when a defendant is accused of a crime, 

State v. Ackley (1982), 201 Mont. 252, 

255, 653 P.2d 851, 853, but the nature of 

the right precludes establishing a time 

period cast in stone as determinative. 

The right of a speedy trial is 

necessarily relative. It is consistent 

with delays and depends on circumstances. 

It secures rights to a defendant. It 

does not preclude the rights of public 

justice. 

Beavers v. Haubert (1905), 198 U.S. 77, 

87, 25 S.Ct. 573, 576, 49 L.Ed.2d 950, 

954. Thus, any inquiry into a speedy 

trial claim necessitates a functional 

analysis of the right in the particular 

context of the case. 

Consistent with the amorphous quality of 

the right, the United States Supreme 

Court established a four-pronged 

balancing test to determine speedy trial 

claims in Barker v. Wingo (1972), 407 

U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. 

This Court has adopted the Barker test as 

stated in State ex rel. Briceno 

v. District Court (1977), 173 Mont. 516, 

518, 568 P.2d 162, 163-4: 

These cases involve a sensitive 

balancing of four factors, in which the 

conduct of the prosecution and defendant 

are weighed in determining whether there 

has been a denial of the right to a 
speedy trial. The four factors to be 

evaluated and balanced are: 

1) Length of delay; 

2) Reason for delay; 

3) Assertion of the right by defendant; 

and 

4) Prejudice. 

No single factor is determinative. Each 

facet of the analysis is weighed in light 

of the surrounding facts and 

circumstances. 

In speedy trial analysis, the length of delay acts as a 

"triggering" mechanism and the other above enunciated factors 

need not be examined unless presumptive prejudicial delay is 

present. State v. Harvey (1979), 184 Mont. 423, 433, 603 

P.2d 661, 667. The State argued only 56 days expired between 

the filing of the information and the trial date. The 

District Court properly dispelled this claim stating the 

right to speedy trial attaches at arrest or the filing of the 

complaint in justice court. State v. Larson (Mont. 1981), 

623 P.2d 954, 957, 38 St.Rep. 213, 215. The delay in this 

case would have been 214 days. It is indisputable that this 

length of time is sufficient to trigger a speedy trial 

examination. State v. Palmer (Mont. 1986), 723 P.2d 956, 43 

St.Rep. 1503 (256 days); State v. Chavez (Mont. 1984), 691 

P.2d 1365, 41 St.Rep. 2219 (214 days); State v. Ackley 

(1982), 201 Mont. 252, 653 P.2d 851 (257 days) ; State v. 

Cassidy (1978), 176 Mont. 385, 578 P.2d 735 (246 days). 

This delay gives rise to a rebuttable presumption of 

prejudice. The State therefore, in order to rebut this 

presumption, has an affirmative duty to come forward with 

evidence showing Wombolt was not prejudiced by the delay and 

show there was a reasonable excuse. Waters, 743 P.2d at 619. 
The State's burden was not met in this case to rebut 

the presumption of prejudice. This length, 214 days, leads 

us to the second Barker factor, reason for delay. The State 

claimed the delay was "institutional" and therefore not 

chargeable to the State. "Although institutional delay 

weighs less heavily against the State, it is the policy of 

this Court to gradually reduce our tolerance for this excuse 

... " Chavez, supra, 691 P.2d at 1370. Nevertheless, 

institutional delay still must be considered by this Court: 

"[dlelay inherent in the system . . . chargeable to the 

State." Ackley, supra, 201 Mont. at 256, 653 P.2d at 

853-854; citing, State v. Harvey (1979), 184 Mont. 423, 434, 

603 P.2d 661, 667. As the District Court appropriately 

pointed out, the institutional delay in this case was caused 

by the "Gazette suit, and the State's inaction in the face of 

that suit." 

Here, the State had the alternative to proceed with the 

filing of the information in the District Court. State ex 

rel. Brackman v. District Court (1977), 172 Mont. 24, 28, 560 

P.2d 523, 526. Although the State properly asserts that it 

has the power to choose the method of commencement of 

prosecution, the District Court appropriately pointed out 

"concomitant with this discretion, however, is the duty to 

bring the accused to trial." Citing, Larson, supra, 623 P.2d 

954. Here, the State held Wombolt in custody without 

proceeding with the motion for leave to file an information. 

Therefore, although institutional, the delay was still 

chargeable to the State. The State has the responsibility to 

bring the accused to trial, it is not the duty of the accused 

to bring himself to trial. This responsibility was clearly 

not met. Larson, supra, 623 P.2d at 958. 

The third factor involved in this analysis is Wombolt's 

assertion of the right. Wombolt properly asserted this right 
prior to trial at the omnibus hearing, October 2, 1987. This 

factor is met when the denial of speedy trial is put before 

the court prior to the commencement of trial. Waters, supra, 

743 P.2d at 620; State v. Steward (1975), 168 Mont. 385, 390, 

The final factor involved requires an analysis of 

whether the defendant was prejudiced. 

"Prejudice is determined by examining the 

defendant's interest in a speedy trial. 

These interests are: (1) to prevent 

oppressive pretrial incarceration; (2) to 

minimize anxiety and concern of the 

accused ; and, (3) to limit the 

possibility that the defense will be 

impaired. Barker, 407 U.S. at 532, 92 

S.Ct. at 2193, 33 L.Ed.2d at 118." 

Waters, supra, 743 P.2d at 620. Here, a review of the 

District Court's order of October 23, 1987, disposes of any 

argument the State can present in regard to the prejudice 

Wombolt suffered: 

The State does not address the first 

interest, the prevention of oppressive 

incarceration. The Supreme Court 

discussed the prejudicial effect of 

incarceration in Barker: 

"We have discussed previously the 

societal disadvantages of lengthy 

pretrial incarceration, hut obviously the 

disadvantages for the accused who cannot 

obtain his release are even more serious. 

The time spent in jail awaiting trial has 

a detrimental impact on the individual. 

It often means the loss of a job; it 

disrupts family life; and it enforces 

idleness. Most jails offer little or no 

recreational or rehabilitative programs. 

The time spent in jail is simply dead 

time. Moreover, if a defendant is locked 

up, he is hindered in his ability to 

gather evidence, contact witnesses, or 

otherwise prepare his defense. Imposing 
those consequences on anyone who has not 

yet been convicted is serious * * * " 

92 S.Ct. at 2193. The State has failed 

to demonstrate that Defendant's 

incarceration was not oppressive. 

The State does not address the second 

interest, the minimization of anxiety. 

In State v. Britton, -- Mont. -- I 689 

P.2d 1256, 41 St.Rep. 2018 (1984), the 

Montana Supreme Court held that a 

criminal Defendant's anxiety over a 

"potential loss of liberty because of a 

criminal conviction" was significant. 41 

St.Rep. at 2022. There, Defendant was 

released on his own recognizance after 

his first appearance in Justice Court. 

The criminal charges against him were 

pending for over a year before he was 

brought to trial. - Id. It cannot be 

conscientiously argued that the degree of 

anxiety and concern experienced by 

Britton regarding his potential loss of 

liberty in any way outweighs Defendant 

Wombolt's anxiety and concern caused by 

his actual loss of liberty. 

The Court must next consider whether the 

accused defense has been impaired by the 

delay. As noted above, oppressive 

incarceration hinders the preparation of 

a defense. Barker, supra. Further, 

witnesses may die, suffer memory lapses, 

and physical evidence may vanish. State 

v. Larson, 623 P.2d at 959. The 

Defendant is not required to 

affirmatively prove prejudice; the State 

must come forward with some evidence that 

outweighs the presumption of prejudice. 

Chavez, 41 St.Rep. at 2223. Here, the 

State asserts only that the witnesses 

"are still alive, present and able to 

testify". Such a statement, without 

more, is insufficient to carry the 

State's burden. Thus, the State fails to 

show that Defendant was not prejudiced by 

the delay. 
The State argues on this appeal that Wombolt admitted 

he could not prove prejudice and therefore the State should 

be entitled to the advantage of this admission as part of its 

burden to overcome prejudice. However, from the above 

recitation of the District Court's ruling, it is clear that 

the State alleges only that witnesses "are still alive, 

present and able to testify." This argument pales in light 

of Wombolt's incarceration of over 200 days. 

Upon consideration of the Barker factors and the 

circumstances of this case, we have no alternative than to 

determine that there was excessive delay on the part of the 

prosecution with no justification. Wombolt timely asserted 

his right to a speedy trial. 

The judgment of the District Court ispfirmed. 

We concur: 

2 

P*$f Justice