No. 85-232 IN THE SUPREME COURT OF THE STATE OF MONTANA 

### 1985

CITY OF HAMILTON, Plaintiff and Respondent,

### -vsBYRON CRAIG HAYDEN, Defendant and Appellant.

APPEAL FROM: DistrictCourtof the FourthJudicial District, Inand For 

### the County

### of Ravalli, The Honorable

### John S. Henson, 

### Judge presiding. COUNSEL OF RECORD: ForAppellant: JudithA. Loring, Hamilton, Montana ForRespondent: Koch, McKenna, Goheen & Boggs; D.W. McKenna, Hamilton, Montana

Submitted 

### on Briefs: Oct. 

### 3, 1985 Decided: November 14, 1985



### Filed: 

## NUI/

## 14

# 1985

ClerkMr. Justice Franlr B. Morrison, Jr. delivered the Opinion of theCourt. Defendant Byron Hayden appeals hisApril 29, 1985, jury conviction in the 

### District Court of the Fourth Judicial 

### District, for driving under the influence of alcohol. We 

### reverse the 

### District Court judgment and dismiss the cause. Defendant was arrested and charged with DUI on July 

### 2, 1983, inHamilton, Montana. Defendant waived hisright toa speedy trial atthe city court level on November 10, 1983. Subsequently, he was tried and convicted in City Court on January 26, 1984. Defendant filed a defective notice of appeal tothe DistrictCourt on February 2, 1984; an amended notice of appeal was filed 

### on March 15, 1984. On April 5, 1984, theCityof Hamilton (City)moved todismisstheappeal as being untimely. An order denying the motion to dismiss was entered on May 

### 11, 1985. Defendant filed a motion todismiss for lack of speedy trial on August 21, 1984. This was denied on August 

### 30, 1984, and defendant applied totheMontana Supreme Court for a writof supervisory controlon September 4, 1984. The

### writ
was denied on October 22, 1984, and the matter returned to the 

### District Court. Defendant filed a second motion to dismiss forlack of speedy trial on March 6, 1985, which was denied April 5, 1985. Defendant failed 

### to appear atthe jury trial scheduled on April 8, 1985, and the matter was 

### reset for April 29, 1985. Trial was held on April 29, 1985, and the jury found defendant guilty of DUI. On appeal., the sole issue 

### is whether defendant was denied his constitutional right to a speedy trial.In State v. Knox (1984), 675 P.2d 950, 

### 41 St.Rep. 126, 

## -- we held that a defendant who appeals a lower court decision tothe district court 

### level has a constitutional right to a speedy trial. Whether ornot a defendant has been deprived of this right involves a balancing of four factors: 1) length of delay; 2) reason for the delay; 3) defendant's assertion of hisright

### to a speedy trial; and 4) prejudice to the defendant. Applying these factors tothe present case, 

### we find the defendant was denied his constitutional right 

### to a speedy trialatthedistrictcourt level. Defendant's amended notice of appeal was filedMarch 15, 1984, and his first trial date was 

### set for April 8, 1985, over one year later. A delay of nearly 13 months 

### is sufficient to shift the burden 

### to the City to explain the reason for the delay and the absence of prejudice 

### to the defendant. Statev. Tiedemann (1978), 178Mont 394, 584 P.2d 1284.The City 

### cites the 

### District Court opinion denying defendant's motion to dismiss for lack of speedy trial in asserting the major reasons fordelay

### were themotions filed by the defendant. The 

### District Court opinion 

### is not supported by the facts, inthat 

### it ignores the "deadtime" in this case from May 

### 11, 1984 toAugust 21, 1984, and October 23, 1984, 

### to March 6, 1985. We find an unintentional institutional delay of 236 days 

### is unacceptable where the Cityhas offered no reason for thedelay. The City argues there has been no showing of prejudice againstthedefendant caused by thedelay ingetting thecase totrial. In Tiedemann, we said prejudice would be presumed where there 

### is excessive delay between the date of the

### occurrence and the time of trial. 178 Mont. at 

### 407, 

### 584 P.2d 

### at 

### 1292. In this case, the City has presented no 

### substantial credible evidence showing that the delay has not prejudiced the defendant. The judgment of the District Court is reversed and the