NO. 93-479 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

MICHAEL THOMAS STEWART, 

Defendant and Appellant 

SEP 2 0 1994 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Amy N. Guth, Public Defender's Office, 

Libby, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Micheal Wellenstein, Assistant Attorney 

General, Helena, Montana 

Scott B. Spencer, Lincoln County Attorney, 

Libby, Montana 

Filed: 

Submitted on Briefs: May 19, 1994 

Decided: September 20, 1994 

Cldrk 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Defendant Michael Thomas Stewart appeals from an order of the 

Nineteenth Judicial District Court, Lincoln County, denying 

defendant's motion to dismiss on the grounds of denial of a speedy 

trial. 

The decision of the District Court is affirmed. 

The sole issue on appeal is whether the District Court erred 

in denying defendant's motion to dismiss on speedy trial grounds. 

On January 28, 1991, a Lincoln County jury found defendant 

Michael Stewart guilty of theft, attempted theft, and forgery. The 

District Court sentenced defendant to serve ten years on each count 

in the Montana State Prison, with five years suspended on each 

count. The court ordered these sentences to run concurrently. 

Defendant appealed his conviction to this Court; execution of his 

sentences was stayed pending appeal. 

In October 1991, the United States charged defendant with 

conspiracy and mail fraud. Defendant was found guilty of 

conspiracy to commit mail fraud. The Federal District Court 

sentenced defendant to a term of fourteen months in prison and 

three years of supervised release upon his release from prison. 

On June 23, 1992, this Court reversed and remanded defendant's 

Lincoln County felony convictions. While Stewart was serving his 

federal sentence in South Dakota, this Court issued a remittitur on 

July 9, 1992, and filed it in the District Court on July 13, 1992. 

The District Court issued a warrant for defendant's arrest on 
August 5, 1992, charging him with attempted theft, theft, and, 

forgery. 

A detainer was filed by the State on July 8, 1992. On 

August 6, 1992, the State forwarded the appropriate detainer 

documents to the federal prison. On August 18, 1992, federal 

prison authorities informed defendant of the detainer and advised 

him of his right to request final disposition of the Montana 

charges within 180 days pursuant to Article I11 of the Interstate 

Agreement on Detainers. Defendant did not request a final 

disposition. 

On April 20, 1993, defendant was released from federal prison 

and brought to Lincoln County to face the three felony charges. On 

April 23, the court released defendant on his own recognizance and 

appointed counsel to represent him. 

A trial date was set for July 26, 1993. On June 9, 1993, 

defendant filed a motion to dismiss for lack of a speedy trial, 

claiming that 378 days had elapsed from the filing of the 

remittitur to the trial date. The court denied defendant's motion 

to dismiss and granted his motion to continue, resetting the trial 

for August 24, 1993. 

The court granted defendant's motion to dismiss the theft 

charge on the grounds of double jeopardy; accepted defendant s 

guilty plea to the charge of attempted theft; dismissed the forgery 

charge; and sentenced defendant to a two-year suspended sentence to 

run concurrently with the federal sentence. 
Defendant asserts that he has been denied the right to a 

speedy trial by a delay of 378 days from the time of the filing of 

the remittitur on July 13, 1992, to the date of the second trial on 

July 26, 1993. Defendant argues that his right to a speedy trial 

is protected by the Sixth Amendment to the United States 

Constitution and is not limited by the Interstate Agreement on 

Detainers, Article III(1) of 5 46-31-101, MCA. 

The record shows that the defendant failed to petition the 

State to dispose of the charges within 180 days pursuant to 

Article III(1) of the Interstate Agreement on Detainers which 

provides in part: 

Whenever a person has entered upon a term of 

imprisonment in a penal or correctional institution of a 

party state and whenever during the continuance of the 

term of imprisonment there is pending in any other party 

state any untried indictment, information, or complaint 

on the basis of which a detainer has been lodged against 

the prisoner, he shall be brought to trial within 180 

days after he shall have caused to be delivered to the 

prosecuting officer and the appropriate court of the 

prosecuting officer's jurisdiction written notice of the 

place of his imprisonment and his request for a final 

disposition . . . . 

Article III(1) of 5 46-31-101, MCA. 

The State did not make a request for temporary custody under 

Article IV of the Interstate Agreement on Detainers which provides 

in part: 

The appropriate officer ofthe jurisdiction in which 

an untried indictment, information, or complaint is 

pending shall be entitled to have a prisoner against whom 

he has lodged a detainer and who is serving a term of 

imprisonment in any party state made available in 

accordance with Article V(1) hereof upon presentation of 

a written request for temporary custody or availability 
to the appropriate authorities of the state in which the 

prisoner is incarcerated . . . . 

Article IV(1) of S 46-31-101, MCA. 

In a memorandum supporting its order denying defendant's 

motion to dismiss, the District Court found that defendant's 

failure to demand a trial under Article 111 of the Interstate 

Agreement on Detainers was not a waiver of his right to a speedy 

trial under the Sixth Amendment. Also, the court found that the 

State's failure to request temporary custody of defendant did not 

deprive defendant of a speedy trial. 

Defendant argues that the court denied his motion to dismiss 

because defendant failed to demand a trial to dispose of the 

charges pursuant to Article 111 of the Interstate Agreement on 

Detainers. Defendant contends that the court wrongly interpreted 

the Interstate Agreement on Detainers by turning defendant's right 

to dispose of the charges within 180 days into a condition 

precedent that must be exercised in order to preserve the right to 

a speedy trial. 

The record does not support defendant's contention. The court 

viewed defendant's failure to exercise his right under Article 111 

of the Interstate Agreement on Detainers as a factor to be 

considered, rather than a dispositive fact, in determining whether 

defendant had been denied a speedy trial. The court correctly 

analyzed defendant's claim under the test set forth in Barker v. 

Wingo (1972), 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101. This 
Court adopted the Barker test in State ex rel. Briceno v. District 

Court (19771, 173 Mont. 516, 518, 568 P.2d 162, 163-64, 

The accusedls right to a speedy trial in a criminal 

prosecution is guaranteed by the Sixth Amendment to the United 

States Constitution, and Article 11, Section 24, of the Montana 

Constitution. To determine whether a defendant's right to a speedy 

trial has been violated, this court must balance four factors: 

(1) length of delay, (2) reason for delay, (3) the defendantfs 

assertion of his right, and (4) the prejudice to defendant. 

Barker, 407 U.S. at 530; State v. Thompson (1993), 263 Mont. 17, 

32, 865 P.2d 1125, 1135; State v. Hembd (19921, 254 Mont. 407, 413, 

838 P.2d 412, 416; State v. Heffernan (lggl), 248 Mont. 67, 70, 809 

P.2d 566, 568. Of the four Barker factors, no one factor is 

determinative; all four must be considered in light of the facts 

and circumstances. Thompson, 865 P.2d at 1135; State v. Morris 

(19881, 230 Mont. 311, 317, 749 P.2d 1379, 1382. 

(1) LENGTH OF DELAY 

We have held that the first factor, length of delay, is of 

primary importance. The other factors need not be considered 

unless the length of delay is presumptively prejudicial. Thompson, 

865 P.2d at 1134; State v. Dahms (19921, 252 Mont. 1, 12, 825 P.2d 

1214, 1220. Whether the length of delay will be considered 

presumptively prejudicial depends on the facts of each case. The 

initial computation of length of delay is made without allocation 

of days to either party. Thompson, 865 P,2d at 1135; Dahms, 825 

P.2d at 1220; Heffernan, 809 P.2d at 568. While delays of over 200 
days will usually trigger the full speedy trial analysis, Dahms, 

825 P.2d at 1220-21; State v. Wombalt (L988), 231 Mont. 400, 753 

P.2d 330, we have held that a delay of 175 days was presumptively 

prejudicial. State v. Bartnes (1988), 234 Mont. 522, 764 P.2d 

1271. 

In the case of retrials, it is the time of the filing of the 

remittitur which is controlling in determining a defendant's speedy 

trial rights. State v. Cardwell (1981), 191 Mont. 539, 545, 625 

P.2d 553, 556, State v. Sanders (1973), 163 Mont. 209, 214, 516 

P.2d 372, 375. In the present case, the clock began running when 

the remittitur was filed in District Court on July 13, 1992, and 

stopped running July 26, 1993, the date set for trial. The 378 

days between the filing of the remittitur and the trial date is 

presumptively prejudicial to defendant, therefore, the remaining 

three factors must be considered. 

(21 REASONS 

In considering the second factor, the reasons for the delay, 

we allocate the delay by determining how much time is attributable 

to each party. Thompson, 865 P.2d at 1135; Heffernan, 809 P.2d at 

568. 

A total of 378 days elapsed between the filing of the 

remittitur on July 13, 1992, and the July 26, 1993, trial date. 

Defendant argues that when a defendant is incarcerated in a foreign 

jurisdiction, the State must acquire temporary custody over the 

defendant pursuant to Article IV of the Interstate Agreement on 

Detainers in order to guarantee a speedy trial. Defendant argues 
that all of the 378 days are chargeable to the State because the 

State did not seek temporary custody over defendant. We do not 

agree. 

The record shows that 36 days elapsed from the July 13, 1992, 

filing of the remittitur to the August 18, 1992, filing of the 

detainer. Ninety-seven days elapsed from the April 20, 1993, 

release of defendant into the custody of the State of Montana to 

the July 26, 1993, trial date. All of this 133 day delay was 

institutional and is chargeable to the State of Montana. There is 

nothing in the record to suggest that this delay was purposeful or 

caused by bad faith on the part of the State. We do not suggest 

that a defendant should waive the right to a speedy trial because 

of institutional delays. However, institutional delay weighs less 

heavily against the State than does purposeful delay. Thom~son, 

865 P.2d at 1135; Hembd, 838 P.2d at 416. 

In State v. Grant (1987), 227 Mont. 181, 738 P.2d 106, this 

Court addressed the amount of time chargeable to a defendant 

incarcerated in a foreign jurisdiction where a detainer had been 

filed. We held that the time chargeable to the defendant began 

when the State of Montana issued the first of three detainers to 

the defendant and the State of Idaho notifying them of the charges 

pending against the defendant in Montana. Grant, 738 P.2d at 109. 

The time chargeable to the defendant stopped running when the 

defendant asserted his right to a speedy trial by requesting a 

final disposition of the Montana charges. Grant, 738 P.2d at 109. 

We concluded that because the defendant knew the charges were 
pending against him in Montana, it was up to the defendant to 

request a speedy disposition of the charges against him. Grant, 

738 P.2d at 109. 

The record shows that 245 days elapsed from the August 18, 

1992, filing of the detainer to the April 20, 1993, release of 

defendant into the custody of the State of Montana. Defendant was 

aware of the charges pending in Montana and of his right to request 

a final disposition of those charges under Article I11 of the 

Interstate Agreement on Detainers. Defendant did not exercise this 

right. The total 245 days is chargeable to defendant. Grant, 738 

P.2d at 109-10. 

(3) ASSERTION OF THE RIGHT 

The record shows that defendant satisfied the third element by 

moving to dismiss the action on speedy trial grounds on June 9, 

1993, prior to the commencement of his trial. 

141 PREJUDICE TO THE DEFENDANT 

The final Barker factor is prejudice to the defendant. Three 

interests of a defendant may be prejudiced by a delay in coming to 

trial. These interests are: (1) pretrial incarceration, 

(2) anxiety and concern, and (3) impairment of defense. Thom~son, 

865 P.2d at 1135; Hembd, 838 P.2d at 416; Barker, 407 U.S. at 532. 

While all three are important, the most critical interest is 

impairment of defense. Thom~son, 865 P.2d at 1135; State v. Mooney 

(1991), 248 Mont. 115, 119, 809 P.2d 591, 594. 

The first interest we must consider is the defendant's right 

to prevent oppressive pretrial incarceration and its resulting 
prejudice. Heffernan, 809 P.2d at 570; Barker, 407 U.S. at 532. 

Defendant was released into the custody of the State of Montana on 

April 20, 1993. The District Court released defendant on his own 

recognizance on April 23, 1993, to stand trial on July 26, 1993. 

Defendant was not incarcerated during this period and cannot 

complain of prejudice. 

Defendant argues that the detainer caused him to suffer 

prejudice during his incarceration in federal prison following his 

conviction on conspiracy to commit mail fraud. Defendant was 

charged by the State of Montana with theft, attempted theft, and 

forgery resulting from the same circumstances as the federal 

charge. We have held that I1incarceration on a separate charge 

negates any prejudice arising from being incarcerated awaiting 

trial." Hembd, 838 P.2d at 416; State v. Palmer (1986), 223 Mont. 

25, 27-28, 723 P.2d 956, 959; State v. Harvey (l979), 184 Mont. 

423, 435, 603 P.2d 661, 668. The record shows no evidence of 

oppressive pretrial incarceration. Defendant would have been 

incarcerated on the federal charges even if the State of Montana 

had not filed a detainer. There is no evidence that defendant 

suffered any prejudice from his pretrial incarceration. 

The second interest we must consider is the level of anxiety 

the detainer caused the defendant. Defendant contends that his 

anxiety increased while in federal prison because after the 

detainer was filed he was denied furloughs that would have allowed 

him to visit his immediate family, including his elderly mother. 

We have previously stated that a certain amount of anxiety and 
concern is inherent in being charged with a crime, and that the 

existence of anxiety or emotional distress is notoriously difficult 

to prove. Thom~son, 865 P.2d at 1135; State v. Curtis (1990), 241 

Mont. 288, 303, 787 P.2d 306, 316. Although defendant did not act 

to remove the source of his anxiety by requesting a disposition of 

the State charges, defendant can be presumed to have experienced 

some anxiety and concern due to the detainer. 

The final and most important consideration is whether the 

delay impaired or prejudiced the defense. Defendant argues that 

the State impeded his defense by denying him effective assistance 

of counsel. Defendant contends that following his federal 

conviction and incarceration he was unable to retain private 

counsel to prepare a defense to the pending State charges. 

Defendant further contends that had the State extradited him in a 

timely manner he would have been able to request a public defender 

sooner than he did. 

The record shows that defendant was released on his own 

recognizance on April 23, 1993, and that he remained free through 

the final disposition of the State charges. During that time the 

court granted defendant's request for public counsel. The record 

reveals that defendant's counsel provided an effective defense. 

The court granted defendant's motion to dismiss the theft charge. 

The court accepted defendant's guilty plea to the charge of 

attempted theft, and the court dismissed the forgery charge. 

Defendant received a two year suspended sentence to run 

concurrently with his federal sentence. 
After considering the above three factors in light of the 

record, we conclude defendant was not prejudiced by the delay. 

Defendant's own conduct prevented the State from bringing him to a 

speedy trial. He cannot now complain that he was denied a speedy 

trial. Grant, 738 P.2d at 110. 

We hold that under the four-factor balancing test of Barker, 

defendant was not denied his right to a speedy trial, and the 

District Court did not err in denying defendant's motion to 

dismiss. 

The District Court is affirmed. 

Justice ' 

We concur: