97-321

 No. 97-321

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 105

 STATE OF MONTANA,

 

 Plaintiff and Respondent, 

 v.

 

 EUGENE A. POLLACK, 

 

 Defendants and Respondents.

 APPEAL FROM: District Court of the Fourth Judicial District,

 In and for the County of Missoula,

 The Honorable John W. Larson, Judge presiding.

 COUNSEL OF RECORD:

 For Appellant:

 Mark E. Jones, Missoula, Montana

 For Respondent:

 Joseph P. Mazurek, Attorney General, Jennifer Anders,

 Assistant Attorney General, Helena, Montana; Robert L. "Dusty"

 Deschamps, III, Missoula County Attorney, Karen Townsend,

 Assistant Missoula County Attorney, Missoula, Montana

 Submitted on Briefs: December 18, 1997

 Decided: May 4, 1998

 Filed:

 __________________________________________

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 Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

¶1 Eugene A. Pollack ("Pollack") appeals from the judgment of the Fourth

Judicial District Court, and from the order denying his motion to dismiss the

charges against him for lack of speedy trial. We affirm.

¶2 The only issue on appeal is whether the District Court erred when it

failed to dismiss the charges against Pollack for lack of speedy trial pursuant

to § 46-13-401(2), MCA.

 BACKGROUND

¶3 On April 14, 1996, in Missoula County Justice Court, Pollack was

charged with driving under the influence of alcohol and with driving without

liability insurance. On April 15, 1996, he appeared in court and pled not

guilty.

¶4 An omnibus hearing was originally set for June 6, 1996. On the date

of the scheduled hearing, attorney Bruce Hussey appeared on behalf of Pollack

and requested a continuance. According to the District Court's opinion,

Hussey had informed the court that another attorney, Mark Jones, would be

representing Pollack and he therefore requested the continuance to allow Jones

the opportunity to appear on Pollack's behalf. The court granted his request,

and the omnibus hearing was continued until July 11, 1996. 

¶5 On June 6, 1996, the State also moved to amend the citation against

Pollack to correct a technical mistake that occurred when the statute numbers

with which Pollack was charged were accidentally transposed. The original

citation mistakenly charged Pollack with driving without proper insurance in

violation of § 61-6-304(1), MCA, which is the penalty provision for driving

without insurance. The State requested the citation be amended to charge

Pollack with the violation of § 61-6-301(4), MCA. 

¶6 On June 10, 1996, Jones filed a notice of appearance as the attorney of

record for Pollack and a demand for discovery. The State responded to the

discovery demand on June 13, 1996.

¶7 At the rescheduled omnibus hearing held July 11, 1996, the court set

a trial date for November 8, 1996, which was six months and 24 days after

Pollack had entered his pleas of not guilty. On October 23, 1996, Pollack filed

a motion to dismiss the charges against him on the ground that the trial was not

scheduled to occur within six months of his guilty plea as required by § 46-13-401

(2),

MCA. The Justice Court denied the motion, and Pollack pled guilty

to both charges, but reserved his right to appeal the adverse determination of

his motion to dismiss.

¶8 Pollack appealed to the Fourth Judicial District Court, Missoula

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County. The District Court affirmed the Justice Court's order denying the

motion to dismiss. It held that the delay in the trial past the six-month time

limit was caused by Pollack's request to continue the omnibus hearing, which

resulted in good cause for the delay. Pollack appeals the District Court's

decision.

 DISCUSSION

¶9 We review the District Court's legal conclusion to determine whether

it is correct. State v. Fitzgerald (1997), 283 Mont. 162, 165, 940 P.2d 108,

110 (citing State v. Mantz (1994), 269 Mont. 135, 137, 887 P.2d 251, 253).

¶10 Pollack argues that § 46-13-401(2), MCA, requires that his case be

dismissed because the court scheduled his trial to occur more than six months

after he entered his guilty plea. Section 46-13-401(2), MCA, provides:

 After the entry of a plea upon a misdemeanor charge, the court,

 unless good cause to the contrary is shown, shall order the

 prosecution to be dismissed, with prejudice, if a defendant

 whose trial has not been postponed upon the defendant's motion

 is not brought to trial within 6 months.

The State, on the other hand, contends that good cause to the contrary is

shown, because the trial date was delayed due to Pollack's request for a

continuance of the omnibus hearing. We agree.

¶11 This Court has explained that it will dismiss a misdemeanor charge

pursuant to § 46-13-401, MCA, only if two conditions are met: (1) the

defendant has not asked for a postponement; and (2) the State has not shown

good cause for the delay. Fitzgerald, 283 Mont. at 165, 940 P.2d at 110 (citing

State v. Crane (1989), 240 Mont. 235, 238, 784 P.2d 901, 903). 

¶12 In Fitzgerald, we held that "any pretrial motion for continuance filed by

a defendant which has the incidental effect of delaying the trial beyond the six

month time limit could be said to postpone trial' for purposes of § 46-13-401(2),

MCA." Fitzgerald, 283 Mont. at 166-67, 940 P.2d at 111. In that

case, the trial was delayed beyond the six-month time limit because the court

had accommodated Fitzgerald by continuing the omnibus hearing on two

occasions. Fitzgerald, 283 Mont. at 164, 940 P.2d at 109. This Court thus

held that "good cause" existed and § 46-13-401(2), MCA, did not mandate

dismissal. As we stated:

 After these delays caused by Fitzgerald, the Justice Court cannot

 be expected to alter its schedule to ensure that the misdemeanor

 charge is tried within six months. A Justice Court must retain

 a measure of flexibility over scheduling to hear cases on its

 docket. As such, we determine that the trial date of March 26,

 1996, fell within the "good cause to the contrary" exception of

 § 46-13-401(2), MCA. 

Fitzgerald, 283 Mont. at 167, 940 P.2d at 111.

¶13 Similarly, in this case, the District Court found that the delay in the trial

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beyond the six-month time limit was due to Pollack's request to continue the

omnibus hearing. According to our holding in Fitzgerald, the trial date fell

within the "good cause to the contrary" exception to § 46-13-401(2), MCA.

¶14 Pollack challenges the court's factual finding that the delay was

attributable to him. He argues that the State caused the delay by filing the

motion to amend the citation. Pollack admits that the State's motion, which

was filed only to correct transposed numbers in the statutory cite, had "little,

if any, effect upon the charges against him." He nevertheless insists that he

was required to request a continuance of the omnibus hearing in order to

properly evaluate and respond to the motion. But Pollack did not advance this

theory to the District Court. It is well-settled that a party may not change his

theory on appeal from that presented to the district court. State v. Greywater

(1997), 282 Mont. 28, 35, 939 P.2d 975, 979. We thus decline to address the

merits of his argument. We hold that the District Court did not err when it

failed to dismiss the charges against Pollack for lack of speedy trial pursuant

to § 46-13-401(2), MCA.

¶15 Affirmed.

 /S/ WILLIAM E. HUNT, SR.

 

We Concur:

/S/ J. A. TURNAGE

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

/S/ JIM REGNIER 

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