No. 95-580

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

WILLIAM H. TWEEDY,

Defendant and Appellant.

APPEAL FROM: District Court of the Ninth Judicial District,

In and for the County of Glacier,

The Honorable Marc Buyske, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William H. Tweedy, Pro Se, Cut Bank, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Barbara C. Harris, Ass't Attorney General,

Helena, Montana

Larry D. Epstein, Glacier County Attorney,

Cut Bank, Montana

Filed:

Submitted on Briefs: May 23, 1996

Decided: July 23, 1996
Justice Karla M. Gray delivered the Opinion of the Court.

William H. Tweedy (Tweedy) appeals from an order of the Ninth

Judicial District Court, Glacier County, dismissing his appeal from

a Justice Court conviction. W e reverse and remand with

instructions.

The issues on appeal are:

1 . Did the District Court have jurisdiction over Tweedy's

appeal from the Justice Court?

2 . Did the District Court err in granting the State of

Montana's motion to dismiss Tweedy's appeal?

3 . Was Tweedy's right to a speedy trial violated?

On January 3, 1989, the State of Montana (State) charged

Tweedy in Glacier County Justice Court with two counts of

misdemeanor assault. On April 11, 1989, a jury found Tweedy not

guilty on the first count, and guilty on the second count, of

misdemeanor assault. The Justice Court scheduled sentencing for

April 18, 1989, and Tweedy filed a notice of appeal to the District

Court on April 19, 1989. The Justice Court filed its sentencing

order on May 3, 1989.

The District Court scheduled Tweedy's trial for July 21, 1989.

Tweedy subsequently requested, and received, a continuance of that

trial date. No new trial date was ever scheduled. In April of

1990, Tweedy filed a letter requesting that his name be substituted

for that of his previous counsel as attorney of record.

Nothing further occurred in the case until January 13, 1995,

when the State moved to dismiss the appeal on the basis that Tweedy

had failed to diligently pursue it. Tweedy responded with a motion

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to dismiss the underlying charge for lack of speedy trial and

prosecutorial prejudice. The District Court held a hearing on the

motions and, thereafter, granted the State's motion to dismiss

Tweedy's appeal. Tweedy appeals.

1 . Did the District Court have jurisdiction over Tweedy's

appeal from the Justice Court?

On appeal, Tweedy argues that the District Court erred in

dismissing his appeal from the Justice Court and in implicitly

denying his motion to dismiss the charge against him on speedy

trial grounds and other bases. In addition to responding to

Tweedy's arguments, the State contends that the District Court did

not acquire jurisdiction over Tweedy's appeal because his notice of

appeal from the Justice Court was premature.

The issue of subject matter jurisdiction may be raised by a

party, or by the court itself, at any stage of a judicial

proceeding. In re Marriage of Miller (1993), 259 Mont. 424, 426,

856 P.2d 1378, 1380. Moreover, a party cannot consent to subject

matter jurisdiction which is lacking or waive the want of

jurisdiction. State v. Hegeman (1991), 248 Mont. 49, 52, 808 P.2d

509, 511. Thus, notwithstanding the State's failure to raise it in

the District Court, the issue of whether the District Court had

jurisdiction over Tweedy's appeal from the Justice Court is

properly before us.

The manner in which an appeal from a justice court to a

district court must be taken is controlled by statute in Montana

and recently has been clarified by this Court. Pursuant to § 46-

17-311(2), MCA, a defendant initiates an appeal to the district

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Court by filing written notice of intention to appeal within 10

days after a justice court judgment is rendered. A judgment on a

criminal conviction includes the sentence; therefore, the

imposition of sentence and final judgment by the justice court is

a prerequisite for an appeal from that court to the district court.

State v. Todd (1993), 262 Mont. 108, 111, 863 P.2d 423, 425

(citations omitted). A notice of appeal filed after a conviction,

but before the justice court imposes sentence and final judgment,

is premature and does not divest the justice court of jurisdiction

over the case; conversely, a district court does not obtain subject

matter jurisdiction until a justice court has imposed sentence and

final judgment. -,Todd 863 P.2d at 425 (citation omitted).

Here, Tweedy filed his notice of appeal after the April 11,

1989, jury verdict finding him guilty of misdemeanor assault, but

before the Justice Court filed its sentencing order on May 3, 1989.

Tweedy asserts, however, that the Justice Court orally pronounced

sentence on April 18, 1989, in the presence of himself and his

attorney, that the judgment against him was final on that date and

that his attorney prepared the notice of appeal later that day. On

the basis of these assertions, Tweedy contends that he timely filed

his notice of appeal on April 19, 1989, and the District Court

acquired jurisdiction.

We previously have held that the statutory lo-day period for

filing a notice of appeal runs from the date on which a justice

court orally renders judgment in open court, regardless of whether

a written judgment is issued. State v. Mortenson (1978), 175 Mont.

403, 404-405, 574 P.2d 581, 582. In Mortenson, the record

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apparently reflected that the sentence and judgment were, in fact,

orally pronounced in open court. Mortenson, 574 P.2d at 581.

The record in the present case, insofar as it is relevant to

this issue, consists of a jury verdict finding Tweedy guilty of one

count of misdemeanor assault on April 11, 1989; a Justice Court

notice requesting Tweedy to appear on April 18, 1989, for

sentencing; Tweedy's notice of appeal, dated April 18, 1989, and

filed on April 19, 1989; and the Justice Court's sentencing order

on Tweedy's misdemeanor assault conviction, filed on May 3, 1989.

Although the sentencing order does not refer to any sentencing

proceeding or oral pronouncement of sentence having occurred on

April 18, 1989, there also is no indication in the record that

Tweedy did not appear, as ordered, for sentencing in the Justice

Court on that date. Thus, while the record is not altogether clear

in this regard, the order to appear for sentencing on April 18,

1989, taken together with Tweedy's notice of appeal dated the same

day and filed on April 19, 1989, creates a strong inference that

the Justice Court orally pronounced sentence on April 18, 1989, in

accordance with its scheduling order and that the May 3, 1989,

sentencing order was merely a written formalization of its earlier

oral sentence. As a result, judgment was rendered on April 18,

1989, and Tweedy's notice of appeal to the District Court was

timely filed within the statutory lo-day period. We conclude,

therefore, that the District Court had subject matter jurisdiction

over Tweedy's appeal from the Justice Court.

We note that, in 1991, the legislature enacted § 46-18-116,

MCA, which provides as follows:

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The judgment must set iorth the plea, verdict or finding,

and the adjudication. If the defendant is convicted, it

must set forth the sentence or other disposition. The

judgment must be signed and entered on the record.

Although this statute is not located in Chapter 17 of Title 46,

which specifically governs criminal procedure in justice and city

courts, it is applicable to criminal proceedings in all the courts

of Montana "except where provision for a different procedure is

specifically provided by law." Section 46-l-103(1), MCA. Neither

the legislature nor this Court has provided such a different

procedure for justice courts and, therefore, 5 46-18-116, MCA, is

applicable to criminal proceedings in justice courts. While the

§ 46-18-116, MCA, requirement for a signed judgment entered on the

record does not apply here because Tweedy's Justice Court

conviction occurred in 1989, compliance with this requirement by

Montana courts should eliminate confusion in the future regarding

when the statutory time periods for appeal from judgments in

criminal cases begin to run.

2. Did the District Court err in granting the State's motion

to dismiss Tweedy's appeal?

The State argued in the District Court that Tweedy's appeal

from the Justice Court conviction and judgment should be dismissed

based on his failure to pursue it in a timely manner. The State

did not file a brief in support of its motion and did not provide

the District Court with authority for its position at the hearing

on both parties' motions.

The District Court's order granting the State's motion to

dismiss Tweedy's appeal notes only that Tweedy made no effort to

pursue his appeal from the April 1990, point at which he

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substituted himself as counsel of record until the State filed its

motion to dismiss the appeal in January of 1995. The order

provides no further rationale and contains no citation to

authority. The court stated at the hearing that, as the party

bringing the appeal, Tweedy was obligated to ensure that the appeal

was heard in a timely fashion and that the State did not have the

burden to pursue the appeal. The District Court order granting the

State's motion to dismiss the appeal did not directly address

Tweedy's motion to dismiss the underlying charge for lack of speedy

trial on appeal.

Section 25-33-304, MCA, authorizes the dismissal of a civil

appeal from a justice court to a district court for failure to

prosecute or unnecessary delay. No statutory authority for such a

dismissal of a criminal appeal exists, however, and this Court has

not specifically addressed the issue of whether the defendant or

the prosecution has the responsibility to timely pursue the

prosecution of a criminal appeal from a justice court to a district

court. The State contends that such responsibility lies with the

party bringing the appeal.

The right of a criminal defendant to a speedy trial is

guaranteed by both the Sixth Amendment to the United States

Constitution and Article II, Section 24, of the Montana

Constitution. State v. Matthews (1995), 271 Mont. 24, 27, 894 P.2d

285, 287. As a general rule, it is the State's duty to ensure that

a criminal case is diligently prosecuted; the defendant has no duty

to bring himself to trial. State v. Tiedemann (1978), 178 Mont.

394, 400, 584 P.2d 1284, 1288.

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It is clear that a criminal defendant has the initial burden,

pursuant to § 46-17-311, MCA, to perfect his or her appeal from a

justice court in order to vest jurisdiction in the district court.

Once that appeal is perfected, the criminal defendant is entitled

to a trial de novo in the district court pursuant to § 46-17-

311(1), MCA. Thus, when the appeal reaches the district court, it

proceeds as if it were a new trial. State v. Sunford (1990), 244

Mont. 411, 416, 796 P.2d 1084, 1087. Moreover, we have held that,

once either party appeals a criminal action from a justice court to

a district court, speedy trial issues are analyzed under the fourpart test established in Barker v. Wingo (1972), 407 U.S. 514, 92

s.ct. 2182, 33 L.Ed.2d 101. State v. Bullock (1995), 272 Mont.

361, 368-69, 901 P.2d 61, 66; Sunford, 796 P.2d at 1087.

While our cases have not specifically addressed the precise

issue presently before us, they clearly mandate our conclusion that

the burden is on the State to diligently prosecute a criminal case

which is in the district court as the result of an appeal from a

justice court, without regard to which party brought the appeal.

To conclude otherwise would require us to ignore the de novo nature

of such a proceeding under both § 46-17-311, MCA, and Sunford and

to place the burden of prosecuting a criminal case on the defendant

in contravention of Tiedemann. Indeed, to conclude otherwise would

penalize a criminal defendant exercising the statutory right to

appeal to the district court by effectively nullifying the

constitutional guarantee of a speedy trial.

In addition, the situation at issue here is not dissimilar

from that which occasionally results from an appeal to this Court.

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When a criminal defendant appeals to this Court and is granted a

new trial, the State is required on remand to proceed with the new

trial in a diligent and speedy manner. &, e.q., State v. Stewart

(1994), 266 Mont. 525, 881 P.2d 629. A defendant exercising the

statutory right to appeal from a justice court to the district

court is entitled to the same treatment. The State retains the

obligation to ensure that the trial de nova in the district court

progresses in a manner which does not violate the defendant's right

to a speedy trial and, under Bullock, any speedy trial issues which

arise after the appeal has been perfected are analyzed under the

four-part Barker test. & Bullock, 901 P.2d at 66.

The State cites to City of Seattle v. Crockett (Wash. 1976),

551 P.2d 740, in support of its assertion that when a defendant

appeals a justice court conviction, the burden to pursue that

appeal rests with the defendant. In Crockett, the Washington

Supreme Court recognized that a defendant retains a

constitutionally protected right to a speedy trial in a trial de

novo, but held that when the defendant is the party bringing the

appeal in district court, he or she bears the burden of diligently

prosecuting the appeal to protect that right to a speedy trial.

Crockett, 551 P.2d at 743.

We decline to adopt the State's position, based on Crockett,

that a criminal defendant must pursue his or her own prosecution in

a trial de novo before a district court. In our view, a defendant

who retains the constitutional right to a speedy trial after

appealing a justice court conviction to the district court must

also retain the corresponding right to require the prosecution to

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ensure that a speedy trial occurs. We observe, in this regard,

that other jurisdictions have held that a defendant is not under

any obligation to act affirmatively to protect the right to a

speedy trial in a trial de novo. a, e.s., City of Elkhart v.

Bollacker (Kan. 1988), 757 P.2d 311, 314; and Hicks v. People

(Cola. 1961)) 364 P.2d 877, 879-80.

The State also relies on State v. Langdon (Idaho App. 1990),

785 P.2d 679, in support of its argument, but Lansdon is

inapplicable to the issue before us. There, the defendant's appeal

from a magistrate court to the district court was dismissed because

he failed to file a brief in support of his appeal within the

allotted time; the Idaho Court of Appeals determined that dismissal

could be an appropriate discretionary sanction under the applicable

procedural rule for failure to file a timely brief. Lanqdon, 785

P.2d at 680-81. In the present case, Tweedy owed no brief or other

act pursuant to rule or statute.

We conclude that, once a defendant has perfected an appeal

from the justice court to the district court, the State has the

obligation to ensure that the prosecution of the case proceeds in

a diligent manner. We hold, therefore, that the District Court

erred in granting the State's motion to dismiss Tweedy's appeal on

the basis that Tweedy failed to pursue it.

3. Was Tweedy's right to a speedy trial violated?

An analysis of whether a defendant's right to a speedy trial

has been violated requires a balancing of the following four

factors:

1) length of the delay;

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2) reason for the delay;

3) assertion of the right by the defendant; and

4) prejudice to the defendant.

Matthews, a94 P.2d at 287. No single factor is indispensable or

dispositive. State v. Britton (1984), 213 Mont. 155, 158, 689 P.2d

1256, 1258. The first factor, the length of the delay, acts as a

triggering mechanism; the length of the delay must be presumptively

prejudicial before the remaining three factors will be analyzed.

Matthews, 894 P.2d at 287 (citation omitted). The State concedes

that the delay in this case, a period of approximately six years,

is presumptively prejudicial.

When the delay is presumptively prejudicial, the burden shifts

to the State to rebut the presumption by showing a reasonable

explanation for the delay and demonstrating that the defendant was

not prejudiced by the delay. Matthews, 894 P.2d at 287. The State

argues that the reason for the delay after the original July 21,

1989, trial date had been vacated was Tweedy's failure to prosecute

his appeal; on that basis, it contends that the entire period must

be allocated to Tweedy. We concluded above, however, that it was

the State's duty to diligently prosecute the case. Thus, except

for the relatively brief period before and after Tweedy's motion to

continue the original trial date, which is attributable to Tweedy,

we charge the delay in excess of five years to the State.

W e also must weigh the time chargeable to the State.

Matthews, 894 P.2d at 287. Speedy trial issues often involve delay

caused by crowded court dockets and corresponding difficulties in

setting trial dates, which is commonly referred to as institutional

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delay: we weigh that type of institutional delay less heavily

against the State than intentional delay. See State v. Weeks

(X995), 270 Mont. 63, 72, 891 P.2d 477, 482. The delay in this

case was not of that type.

Nor was the delay intentional. Rather, it was caused by the

State's erroneous conclusion that it did not have the burden to

diligently prosecute Tweedy's trial de nova and its total failure

to pursue the case from July of 1989 until its motion to dismiss

the appeal in January of 1995. We noted above that we have not

heretofore specifically addressed the precise issue of which party

has the burden of diligently pursuing a criminal appeal from a

justice court to a district court for a trial de nova; we also

indicated, however, that Tiedemann, Sunford, and Bullock clearly

mandated our conclusion here that the burden remained on the State

to timely prosecute. Thus, Montana case law did not provide a

reasonable basis for the State's position on the burden issue. As

a result, we weigh the delay of more than five years in this case

heavily against the State.

The third Barker factor requires that a defendant assert the

right to a speedy trial. "Our rule is that if a defendant has

moved to dismiss before trial, he has fulfilled the requirement of

asserting his constitutional right to a speedy trial." Britton,

689 P.2d at 1260. Here, Tweedy moved to dismiss for lack of speedy

trial before his trial was ever rescheduled after the first

continuance. Thus, he fulfilled the requirement that he assert his

constitutional right.

The State argues, in this regard, that even if it and the

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District Court had some responsibility to reset Tweedy’s case for

trial, that responsibility should be weighed against Tweedy's "lack

of assertion" of the right to speedy trial; in that event,

according to the State, this Court "must decide whether the cause

of the delay was completely attributable to the State or to a

waiver of the right of speedy trial by the Defendant." With regard

to the alleged "lack of assertion" of the right, that contention is

factually incorrect; indeed, the State recognizes at another

portion of its brief that Tweedy asserted his right on January 17,

1995. With regard to the "waiver" theory, the State cites to no

authority under which a defendant's right to a speedy trial is

waived--in the legal sense--where asserted prior to trial. As

presented here, these arguments by the State are merely a

different, and unsupported, twist on its earlier efforts to place

the burden of diligently prosecuting this trial de nova on the

defendant.

The final factor of the speedy trial analysis is whether the

defendant was prejudiced by the delay. Three interests are

considered in assessing prejudice resulting from delay:

1) prevention of oppressive pretrial incarceration; 2) minimization

of the defendant's anxiety and concern; and 3) avoidance of

impairment of the defense. Matthews, 894 P.2d at 288. The

avoidance of impairment of the defense is the most critical of

these three interests. Matthews, 894 P.2d at 288.

The primary prejudice-related thrust of Tweedy's motion to

dismiss for lack of a speedy trial was that witnesses' memories had

been impaired by the delay. The State argues that, under Weeks,

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general claims of impairment are not persuasive, and that "none of

the witnesses have passed away and there has been no destruction of

the records regarding the charged incident."

It is true that mere self-serving assertions that the

defendant suffered prejudice generally are not sufficient to

demonstrate impairment of, or prejudice to, the defense. Weeks,

891 P.2d at 484. In Weeks however, -, the defendant stated only that

"'[tlhe defense was impaired by the passage of time.'!' Weeks, 891

P.2d at 484. Here, Tweedy's statement that witnesses' memories

were impaired by the lengthy delay is at least minimally more

specific than the statement in Weeks upon which we based our

conclusion.

Moreover, given the presumptively prejudicial delay, the

burden shifted to the State in this case to rebut the presumed

prejudice. Matthews, 894 P.2d at 287. The State did not respond

to Tweedy's motion via either a brief or argument at the hearing.

It did not present any evidence, as required by Matthews, to prove

that Tweedy was not prejudiced. See Matthews, 894 P.2d at 289.

Nor is the State's assertion on appeal that "none of the

witnesses have passed away" material here. First, Tweedy did not

assert that witnesses had died; he asserted that witnesses'

memories have been impaired due to the long delay. Thus, the

State's assertion is not responsive to Tweedy's assertion and, even

if true, it would be insufficient to rebut Tweedy's claim. More

importantly, the appropriate place to respond to Tweedy’s claim of

prejudice was in the District Court, not in this Court. The State

could, and should, have done so by responding to Tweedy's motion

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and requesting an evidentiary hearing to rebut his claims. It did

not.

We recognize that, in the usual case, a defendant claiming a

speedy trial violation would be required to at least submit an

affidavit in support of claims of prejudice. Matthews, 894 P.2d at

289. Moreover, even an affidavit containing a general "the defense

was impaired" assertion is not sufficient to demonstrate impairment

or prejudice to the defense. ,Weeks 891 P.2d at 484.

Once the burden has shifted to the State to rebut presumed

prejudice, however, it is the State's duty to respond to a speedy

trial motion and to properly raise, for resolution by the district

court, the issues related thereto. Under the well-established

principle that we will not consider an issue raised for the first

time on appeal, the State acts at its own peril if it fails to do

so. See Weeks, 891 P.2d at 491.

In this case, the State failed to raise either its fact-based

responses or its legal authority regarding the sufficiency of

Tweedy's assertions in the District Court. Thus, on this record,

we conclude that the State failed to meet its burden of rebutting

the presumed prejudice to the defense as a matter of law.

Consequently, we weigh the prejudice factor in Tweedy's favor.

In this case, we conclude that a proper balancing of the four

Barker factors pursuant to Matthews requires that we accord the

extraordinary length of the delay substantially more weight than

any of the other Barker factors and that we weigh it in Tweedy's

favor and against the State. The assertion of the right and

prejudice factors also weigh in Tweedy's favor, although less

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heavily. As a result, we hold that Tweedy's constitutional right

to a speedy trial was violated.

We reverse the District Court's order dismissing Tweedy's

appeal and remand for entry of an order dismissing the misdemeanor

assault charge against him.

We conyr:

Justices

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