### No. 13361 

### INTHE 

### SUPREME COURT OF THE STATE OF MONTANA 1976

THE STATE OF MONTANA ex rel. RON 

### SANFORD, Relator,

THE DISTRICT COURT OF 

### THE THIRTEENTH JUDICIAL DISTRICT OF 

### THE STATE OF 

### MONTANA, inand for the County of Carbon, and theHONORABLE ROBERT H. 

### WILSON, Respondents.

ORIGINAL PROCEEDING: 

### Counsel of Record: 

### For Relator: 

### Moses, Kampfe, Tolliver and Wright, Billings,

Montana Pablo Perhacs argued, Billings, Montana For Respondents: Hon. Robert L. 

### Woodahl, Attorney General, Helena,

Montana Arthur

### W. Ayers, 

### Jr. argued, County Attorney,

Red Lodge, Montana

Submitted: May 

### 25, 1976 Decided:

## JUL-8

## 1976Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Relator has filed an original proceeding seeking a 

### writ of supervisory control toreview and reverse the district court's denial of hismotions todismiss and suppress in

### a criminal prosecution against him inthe district court of Carbon County. Relator is Ron Sanford who was charged with burglary of the Stockman Bar and Cafe inBridger, Montana, atan unspecified datebetween March 25 and April 12, 1975. On May 

### 1, 1975, the Carbon County attorney applied for
a search warrant of a house and garage inBridger occupied by defendant. The districtjudge issued the searchwarrant and it


### was executed the same day by thedeputy sheriff. Three 

### items allegedly stolen inthe burglary 

### were found on defendant's prem

### ises and seized. On May 15, 1975, the county attorney filed a direct information against relator by leave of court. Arraignment was set forMay 29, but was continued toJune 26 by mutual agreement of the county attorney and relator's counsel. In themeantime relator filed a motion toquash the information with supporting brief and mailed copies of the same to the county attorney and presiding judge. On June 26, relator
was apparently arraigned, but the record 

### is silentconcerning whether a plea was entered. On June 27, relator requested the court to 

### set a hearing
on thismotion. The record discloses that nothing further transpired until January 28, 1976, when relator again requested the court to set a hearing dateon hismotion. On January 30, 1976, thedistrict court entered an order reciting that relator's case had been 

### set for trial as the third
case on April 20, 1976, and 

### set allpending pretrial motions for hearing on February 19. Relator's motion to quash the informationwas heard and denied on February 19. One month laterrelator filed a notice to suppress 

### all testimony and evidence resulting from issuance of the search warrant and noticed 

### it for hearing on April 

### 1. Atthat 

### time themotion 

### was ordered submitted on briefs. On April 15, thedistrictcourt denied thismotion. In themeantime on March 25, relator filed a motion todismiss the information on the ground that he had been denied


### a speedy trial. Atthat 

### timerelator filed 

### a supporting brief and noticed hismotion for hearing on April 

### 1. On that date relator's motion todismiss 

### was ordered submitted on briefs. On April 15relator's motion todismiss was denied. On May 3 relator applied tothis Court for a 

### writof supervisory control. The applicationwas 

### set for adversary hearing, heard on May 25, and taken under advisement by the Court. Two issues arepresented for review: 

### (1)Did the district court 

### err indenying relator's motion to suppress? (2) Did the district court 

### err indenying relator's motion todismiss? Wehold that denial of relator's motion to suppress

### was
error. The searchwarrant was directed "to any Peace Officer of this State". This practice has been condemned by this Court inthe following 

### cases: State

### v. Meidinger (1972), 160Mont. 310, 502 P.2d 58; State ex rel. Stief and Mankin 

### v. Dist. Ct. Mont

# . (1975)I 

## , 540 P.2d 968, 32 St.Rep. 942; State

### v. Snider (1975), Mont

# . , 541 P.2d 1204, 32 St.Rep. 1056. Also cf. Statev. Tropf, 166 Mont. 79, 530 P.2d 1158, 32 St.Rep. 56. We simply willnot tolerate further violation of section 95-703, R.C.M. 1947, topermit incursions by law enforcement officers intoa constitutionally protected area. The motion to suppress should have been granted.We likewise hold that denial of relator'smotion to dismiss 

### was error. In finding that relator has been denied his right toa speedy trialasmandated by the United States and Montana Constitutions, 

### we apply the balancing test of Barker v. Wingo, 407 U.S. 514, 33 L ed 2d 101, 116, 92 S.Ct. 2182. This 

### test was approved by this Court inStatev. Steward, Mont. 

## , 543 P.2d 178, 181, 32 St.Rep. 1185, where 

### we quoted from Barker: 

## "'

## * * * The approach 

### we accept 

### is a balancing 

### test, inwhich the conduct of both the prosecution and the defendant areweighed. "'A balancing test necessarily compels courts to approach speedy trial 

### cases on an ad hoc basis. Wecan do littlemore than identify some of the factorswhich courts should 

### assess indetermining whether a particular defendant has been deprived of his right. Though some might express them in differentways, 

### we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" Here the 

### state admits a delay of 299 days, or approximately 10 months, from relator's arraignment on June 26, 1975 toApril 20, 1976, the date 

### set for 

### trial. Both United States and Montana courts have previously held that a delay of one year between arrest and trialpresents a claim of prima facie

### merit. See Statev. Steward, supra, and cases cited therein. We now hold that a delay of 10months between ardgnment and trial establishes

### a prima facie
case of denial of the right to a speedy trial. The record here discloses no reason for the delay chargeable torelator. Relator requested of three different judges that his motion be set for hearing: atthe timeof arraignment, June 26, 1975; on June 27, 1975; and again on January 28, 1976. It
was finally heard and denied on February 19, 1976. In any event the trialdate of April 20, 1976 was set prior todisposition of any of relator's motions. The burden of justifying the delay 

### rests with the prosecution. U.S. v. Rucker, 464 F.2d 823. It 

### is true that relator made no specific demand that

### his case be set for trial. On the other hand, relator did nothing that can be construed as a 

### waiver of his right to a 

### speedy trial. On March 25, 1976, he moved todismiss for denial of
a speedy trial. Has

### relator been prejudiced by thedelay? We

### quote from Barker: 

### " 

## * * * Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trialrightwas designed topro

### tect. This Court has identified three such interests: (i) To prevent oppressive pretrial incarceration; (ii) 

### To minimize anxiety and concern of the accused; (iii) 

### To limitthe possibility that the defense 

### willbe impaired. 

## * 

## * *" The first interest 

### is not present in thiscase. The second is 

### clearlypresent here. The third cannot be established with any degree of certainty where, ashere, there has been no trial. 

### State

### v. Steward, supra. Considering the totality of the circumstances and considerations inthe balancing test, it 

### appears tous that there has been an excessive delay in bringing relator totrial in this case; that no valid reason exists for such delay; that the delay is 

### not chargeable to relator; and that some prejudice has resulted torelator by reason of the delay. Accordingly, 

### we hold that relator's motion todismiss for denial of a speedy trial should have been granted. We 

### order dismissal of this case with prejudice.

Justice We

### concur:

,,---,,,-- ----L--------a--d---v 

### Hon. Gordon Bennett, district 

# v Judge, sitting in place of Mr. 

### Chief Justice James T. 

### Harrison. -5-