No. 85-224 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSR. RAY HASKINS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Mineral, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Stewart A. Pearce, 11, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena, Montana 

M. Shaun Donovan, County Attorney, Superior, Manta-na 

Submitted on Briefs: Dec. 30, 1985 

Decided: February 13, 1985 

Filed: FEB 13 I986 
Mr. Justice Frank E. Morrison, Jr., delivered the Opinion of 

the Court. 

This is an appeal from a conviction of felony theft in 

the District Court of the Fourth Judicial District, Mineral 

County. Because defendant was denied his constitutional 

right to a speedy trial, we reverse and remand with instructions to dismiss the charge. 

Defendant, R. Ray Haskins, was arrested on October 19, 

1982, and held in the Mineral County Jail until October 22, 

1982, when he was released on bond. The State filed an 

information November 16, 1982, charging defendant with the 

burglary of the L.D. Polich residence near Tarkio, Monta.na, 

and with the theft of various household items belonging to 

the Polichs. 

Defendant filed motions December 21, 1982, seeking to 

quash his arrest as being illegal and to suppress evidence. 

A hearing was held on the motions January 18, 1983. The 

motion to suppress evidence was granted, while the motion to 

quash the arrest was denied on February 24, 1983. Then, on 

April 1, 1983, pursuant to a motion to amend, the District 

Court granted the motion to quash the arrest. 

Defendant next filed a motion on April 20, 1983, to 

dismiss the information for lack of probable cause. The 

motion was denied May 13, 1983, and on May 17, 1983, the 

trial judge set defendant's arraignment for May 31, 1983. 

At the arraignment, defendant entered pleas of not 

guilty to both charges and submitted numerous motions, including a motio~? to dismiss for lack of speedy trial. The 

trial jud.ge ordered briefing on the speedy trial issue and 

set trial for July 25, 1983. The speedy trial motion was 

denied July 1, 1983, as most of the delay was found attributable to defendant. 
On the morning of trial, the County Attorney moved to 

amend the already amended information to allege a different 

offense date. Defendant had earlier given notice of an alibi 

defense to the burglary charge. Therefore, defendant objected to the amendment as being substantive in nature. The 

trial judge gra.nted the amendment, but also granted defendant 

a continuance. 

On July 28, 1983, a new judge accepted jurisdiction and 

set trial for August 29, 1983. Despite motions by defendant 

to compel production of certain evidence, to continue the 

trial date and to sever the two counts, trial was had August 

29, 1983. The jury found defendant not guilty of burglary on 

August 31, 1983, hut failed to reach a verdict on the theft 

charge. 

The Mineral County Attorney filed a motion September 7, 

1983, requesting that a new trial on the theft charge be set. 

Trial was set on September 9, 1983, for October 24, 1983. 

Thereafter, on September 14, 1983, defendant filed a motion 

requesting substitution of a new judge. Judge Harkin accepted jurisdiction of the case September 20, 1983, and on September 27, 1983, reset trial for November 14, 1983. 

Because defense counsel already ha.d a trial scheduled 

for that date, he requested the trial date be continued until 

the week of December 12, 1983. The trial judge granted 

defendant's motion on the condition that defendant waive his 

right to a speedy trial for the time period commencing November 14, 1983, until the court could schedule a new trial 

date. Defendant waived his right to a speedy trial on November 10, 1983, stating: 

IN MOVING for continuance of his re-trial 

-- to the spring, 1984, Jury term, Defendant 

waives his right to speedy trial from the 

period 14-November-83 to early 1984, 

while reserving all objections for the 
period 19-October-82 to 14-November-83. 

(emphasis supplied) 

On January 16, 1984, defendant's trial was set to begin 

September 4, 1984. Practically the only activity between 

January 1984 and the trial was a motion filed by defendant on 

May 16, 1984, requesting any evidence obtained hy the prosecution since the last trial. No response was made to the 

motion. 

Finally, on August 31, 1.984, defendant filed numerous 

pre-trial motions, including a motion alleging the denial of 

defendant's right to a speedy trial. Trial commenced as 

scheduled, with the trial judge reserving his ruling on the 

speedy trial motion until after trial-. Defendant was convicted of theft on September 10, 1984. On November 20, 1984, 

after denying d.efendantls speedy trial motion from the bench, 

the trial judge gave defendant a three-year deferred sentence, predicated on defendant serving six months in the 

Mineral County Jail, paying restitution to the Polichs and 

obeying a.11 conditions imposed by the Department of Institutions' Division of Adult Probation and Parole. 

Defendant appeals, raising numerous issues. However, we 

find the issue of whether defendant was denied his constitutional right to a speedy trial to be dispositive. 

The right to a speedy trial is guaranteed to all criminal defendants by the Sixth Amendment to the United States 

Constitution and article 11, 5 24 of the Montana Constitution 

(1972) . The factors to be used in determining whether this 

right has been abridged were originally set forth by the 

United States Supreme Court in Barker v. Wingo (1972), 407 

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

1) length of the delay; 2) the reason for the delay; 3) the 

defendant's timely assertion of his right; and 4) the 
prejudice suffered by defendant. We have repeatedly used 

these same factors for determining whether P40ntana1 s constitutional right to a speedy trial has been denied. However, 

no individual factor is dispositive. See State v. Britton 

(Mont. 1984), 689 P.2d 1256, 1258, 41 St.Rep. 2018, 2019. 

The length of the delay j.s the test by which a speedy 

trial inquiry is triggered. The del-ay must be or' a sufficient length to be deemed "presumptively prejudicial," else 

there is no need to inquire into the remaining factors. 

State v. Chavez (Mont. 1984), 691 P.2d 1365, 1369, 41 St.Rep. 

2219, 2222. The length of time between defendant's arrest on 

October 19, 3 982, and the start of defendant1 s second trial 

on September 4, 1984 (686 days), clearly constitutes "presumptive prejudice." So does the length of time between the 

first trial, which ended August 31, 1983, in a hung jury on 

the theft charge, and September 4, 1984, th.e start of defendant's second trial (370 days). See State v. Ackley (1982) , 

201 Mont. 252, 653 P.2d 851. We therefore confine our analysis to the second time frame. 

Though defendant waited until August 31, 1984, to raise 

the speedy trial issue, the assertion of his right was timely 

because it was made prior to the start of trial. 

However, delay of assertion of the right 

to speedy trial is not measured simply by 

measuring the lapse of time from the time 

of the charge until the time the motion 

i.s made. Rather, the sole inquiry is 

whether defendant has moved before trial 

to dismiss on the ground that he has been 

denied a speedy trial. The United States 

Supreme Court stated in Barker 5 Wingo, 

supra, that " [t] here is no fixed point in 

the criminal process when the State can 

put the defenda.nt to the choice of either 

exercising or waiving the right to a 

speedy trial." 407 U.S. at 521, 92 S.Ct. 

at 2187. FJe adopt this same position 

when interpreting our own Constitutio~. 
State v. Britton, 689 P.2d at 1260, 41 St.Rep. at 2022. 

Since defendant was presumptively prejud-iced by the 

delay in his trial, the State has the burden of rebutting 

this prejudice by proving that defendant was not prejudiced 

by the delay and/or by providing a reason for the delay which 

outweighs the prejudice to the defendant. State v. Chavez, 

691 P.2d at 1370, 41 St.l?ep. at 2223. 

In its brief, the State contends defendant made only 

vague allegations of prejudice and that pursuant to State v. 

Chavez, supra, defendant "may not rest merely on the presumption of prejudice under such circumstances. " Prejudice can 

be shown in many ways, primarily: 1) oppressive pre-trial 

incarceration; 2) anxiety and concern of the accused while 

a.waiting trial; and 3) impairment of the defense. Barker, 

407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. Defendant obviously did not suffer oppressive pre-trial incarceration. He was in the Mineral County Jail for only three 

days. However, defendant alleges that he suffered severe 

anxiety while awaiting final disposition of the charges 

against him. He experienced both personal bankruptcy and the 

bankruptcy of his logging business. Testimony by several 

character witnesses at the trial supports defendant's allegation that his reputation in the community was ruined. These 

are all reasons for great anxiety and sufficient allegations 

to place the burden of proving no resultant prejudice on the 

State. See State v. Britton, supra. The State has not met 

its burden. 

Finally, and most importantly, we note the lack of 

reasons offered by the State for the delay between November 

14, 1983, and September 4, 1984. The only reason offered by 

the State was that no trials were held in Mineral County 

during the 1984 spring calendar. This reason is inadequate 
in light of the waiver signed by defendant and quoted above, 

specifically waiving his right to a speedy trial until early 

1984. Given the presumption against waivers of constitutional rights, State v. Ackley, 201 Mont. at 257, 653 P.2d at 

854, we refuse to extend defendant's waiver past the Spring 

There is no indication the State attempted to reschedule 

the trial for an earlier time or to ascertain why an earlier 

date would not be possible. Granted, the delay is an "institutional delay" and therefore should not be weighed against 

the State as heavily as an intentional "dragging of the feet1' 

by the State. However, it is the responsibility of the State 

to bring defendant to trial. It is not the responsibility of 

the defendant to ensure that he is prosecuted. State v. 

Britton, 689 P.2d at 1261, 41 St.Rep. at 2023. 

Reversed. w