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No. 98-022 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1999 MT 197 

295 Mont. 399

984 P.2d 733

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

BRENDA KIPP,

Defendant and Appellant.

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier,

The Honorable Marc G. Buyske, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

Terryl T. Healy, Attorney at Law; Cut Bank, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; John Paulson,

Assistant Attorney General; Helena, Montana

Larry D. Epstein, Glacier County Attorney; Cut Bank, Montana

Submitted on Briefs: February 11, 1999 

Decided: August 25, 1999

Filed:

__________________________________________

Clerk

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Justice Terry N. Trieweiler delivered the opinion of the Court.

1. ¶On August 29, 1996, Brenda Kipp was charged by information filed in the District 

Court for the Ninth Judicial District in Glacier County with the following offenses: 

driving a motor vehicle while under the influence of alcohol, a fourth offense, in 

violation of §§ 61-8-401(1)(a) and -722(4), MCA (1995); failure to give notice of an 

accident by the quickest means available, in violation of § 61-7-108, MCA (1995); 

failure to stop and identify herself after striking an unattended vehicle, in violation 

of § 61-7-106, MCA (1995); driving while her privilege to do so was suspended or 

revoked, in violation of § 61-5-212(1), MCA (1995); and operating a motor vehicle 

without liability insurance protection in effect, in violation of § 61-6-304(1), MCA 

(1995). Kipp filed a motion to quash the use of any evidence of her previous DUI 

convictions in tribal court and a motion to dismiss the charges based on her belief 

that the State violated her right to a speedy trial. The District Court denied both 

motions. Kipp pled guilty to the charges and appealed the District Court's denial of 

her motion to quash and motion to dismiss. We reverse the judgment of the District 

Court.

2. ¶The dispositive issue on appeal is:

3. ¶Did the State violate Kipp's right to a speedy trial?

FACTUAL BACKGROUND

1. ¶On August 20, 1996, a witness called the Glacier County Sheriff's Office to report 

an automobile accident which occurred on Central Avenue in Cut Bank. Kipp was 

stopped near the scene and arrested for driving under the influence of alcohol. She 

was charged by information in District Court on August 27, 1996, and trial was set 

for February 24, 1997. On January 14, 1997, Kipp filed a motion to quash any 

reference to her tribal court convictions for driving under the influence of alcohol 

and filed a second motion to quash on January 29, 1997. The District Court held a 

hearing on the motions on February 5, 1997. A hearing for supplemental argument 

and to set a new trial date was held on March 5, 1997. The parties requested that the 

issue be submitted on briefs, and the District Court set a briefing schedule by which 

the motion was deemed submitted when Kipp's reply brief was filed on March 14, 

1997. The District Court minute record from the March 5 hearing states that after 

the ruling, "the parties will advise if a new trial date will be required." The District 

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Court denied the motions on April 18, 1997. 

2. ¶On September 4, 1997, the parties appeared in District Court and the State 

requested that the District Court set a trial date. The order setting trial for October 

10, 1997, was mailed to the parties on September 5, 1997, and Kipp filed a motion 

to dismiss for lack of speedy trial on September 23, 1997. At a hearing the next day, 

Kipp informed the District Court that she would plead guilty in the event that her 

motion was denied. The District Court vacated the trial date and stated that it would 

wait to set a date for the change of plea hearing until after it ruled on the motion. 

The District Court denied the motion and set a hearing for change of plea for 

November 19, 1997. Kipp requested a continuance at that hearing and subsequently 

pled guilty to all charges, subject to reservation of her right to appeal, on December 

3, 1997.

DISCUSSION

1. ¶Did the State violate Kipp's right to a speedy trial?

2. ¶Kipp contends that the District Court incorrectly concluded that the State did not 

violate her right to a speedy trial. Whether a defendant has been denied a speedy 

trial is a question of constitutional law. See City of Billings v. Bruce, 1998 MT 186, 

¶ 18, 290 Mont. 148, ¶ 18, 965 P.2d 866, ¶ 18. We review a district court's 

conclusions of law to determine whether its interpretation of the law is correct. See 

Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 

680, 696. 

3. ¶The Sixth Amendment to the United States Constitution and Article II, Section 24, 

of the Montana Constitution, guarantee a criminal defendant's right to a speedy trial. 

See State v. Olmsted, 1998 MT 301, ¶ 49, 968 P.2d 1154, ¶ 49. In Barker v. Wingo 

(1972), 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101, the United States Supreme 

Court established four factors which must be considered in any review of a claim 

that a speedy trial was denied: (1) the length of the delay; (2) the reason for the 

delay; (3) the defendant's assertion of his right; and (4) the prejudice to the 

defendant. See Barker, 407 U.S. at 530, 92 S. Ct. at 292, 33 L. Ed. 2d at 117. 

Prejudice to the defendant can be established based on any of the following: (1) 

pretrial incarceration; (2) anxiety and concern to the defendant; or (3) impairment of 

the defense. See Barker, 407 U.S. at 532, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118. In 

Bruce, this Court recently clarified its line of cases which interpret and apply Barker.

4. ¶First, we consider the length of delay from the time charges are filed until the 

defendant's trial date. If the length of delay is 200 days or longer, further speedy 

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trial analysis is necessary. See Bruce, ¶ 55. In this case, the District Court found that 

there were 389 days of delay from the date the information was filed to the date 

Kipp's speedy trial motion was denied on November 10, 1997. We look instead to 

the defendant's trial date or, in this case, to the date of the hearing at which Kipp 

pled guilty since that was the date of disposition in this case. Kipp was charged by 

information on August 29, 1996, and pled guilty at the change of plea hearing on 

November 19, 1997; a delay of 448 days which renders further speedy trial analysis 

necessary.

5. ¶Second, we consider the reason for the delay. We determine how many days of 

delay are attributable to the State, and if we conclude that 275 days or more of delay 

are attributable to the State, the burden will shift to the State to demonstrate that the 

defendant has not been prejudiced by the delay. See Bruce, ¶ 56. When delay is 

either institutional or caused directly by the prosecution, it is attributable to the 

State. See Bruce, ¶ 61; State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 

416. Moreover, "the [State] bears the burden of prosecution, and a defendant is 

under no obligation to ensure diligent prosecution of the case against him or to help 

the [State] avoid dismissal for failure to timely prosecute him." Bruce, ¶ 63; see also 

State v. Tweedy (1996), 277 Mont. 313, 318-20, 922 P.2d 1134, 1137-38.

6. ¶The original trial date for this case was February 24, 1997. The District Court 

determined that the time between August 29, 1996, and February 24, 1997, was 

institutional delay attributable to the State. However, it then attributed to Kipp all of 

the delay between her January 14, 1997, motion to quash and its April 18, 1997, 

ruling on that motion. The District Court also characterized the time between April 

18 and Kipp's September 24, 1997, motion to dismiss as institutional delay, but 

concluded that the delay was the result of Kipp's motions and therefore chargeable 

to her. Accordingly, the District Court attributed 136 days of delay to the State and 

253 days to the defendant. We conclude that the District Court erred when it 

allocated 253 days of delay to Kipp.

7. ¶When a defendant files an "eve of trial" motion, which raises a complex legal issue 

or requires an evidentiary hearing which thereby makes the original trial date 

impracticable, the reasonable period of delay caused thereby is attributable to the 

defendant. For example, we have stated that "any delay directly attributable to a 

motion to dismiss based on denial of speedy trial which is filed less than ten days 

prior to commencement of trial will be assigned to the defendant." Bruce, ¶ 57. 

8. ¶Kipp's motion to quash was filed more than a month before her trial and the 

District Court heard arguments on February 5, 1997, 19 days before the original trial 

date. The record from that hearing shows that the District Court vacated the trial 

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date and stated that it would set a new trial date once it had entered its decision on 

the motion, because the result of the motion "might have an impact on what the 

parties do if it turned out [the prior DUI convictions] are not going to be 

considered." The District Court then scheduled a hearing for March 5, 1997, to set a 

new trial date and to hear supplemental arguments on the motion to quash. At that 

hearing, the parties requested that the matter be submitted on briefs and the District 

Court set a briefing schedule. 

9. ¶When a trial court, for its own reasons, vacates the trial date and does not set a new 

date, this delay is not attributable to the defendant. Kipp brought her motion more 

than a month before the original trial. Had it been responded to in a timely fashion 

there is no indication in the record why it could not have been decided prior to the 

February 24, 1997, trial date. It was not her duty to insure that the briefing and 

argument schedule proceeded in a manner which would insure that she was 

prosecuted in a timely fashion. Therefore, we conclude that the delay from the 

motion to quash until the court issued its decision was institutional delay attributable 

to the State. See Bruce, ¶ 61; Hembd, 254 Mont. at 413, 838 P.2d at 416.

10. ¶The District Court suggested that it was important to attribute delay from untimely 

motions to defendants in order to prevent them from timing motions to create 

speedy trial problems; however, Kipp's motions were not untimely and there is 

nothing before us to indicate they were timed to cause delay. 

11. ¶ Once the District Court entered its decision, no further activity occurred in the 

case until the State requested a trial date almost five months later. The State has the 

burden of diligent prosecution at all stages of a case and, therefore, had the burden 

to ensure that a new trial date was set in this case. See Bruce, ¶ 63; see also Tweedy, 

277 Mont. at 318-20, 922 P.2d at 1137-38. From the date of the District Court's 

April 18, 1997, order until the November 19, 1997, change of plea hearing date, 

Kipp filed no motions, asked for no continuances, and did nothing to contribute to 

further delay. Therefore, the delay from April 18, 1997, until the November 19, 

1997, change of plea hearing is institutional delay attributable to the State. See 

Bruce, ¶ 61; Hembd, 254 Mont. at 413, 838 P.2d at 416. Kipp requested a 

continuance at the November 19 hearing until December 3, 1997. Therefore, we 

conclude that 15 days of delay are attributable to Kipp and 433 days of delay are 

attributable to the State.

12. ¶Based on our holding that 433 days of delay are attributable to the State, we 

conclude the burden shifted to the State to prove that Kipp was not prejudiced by the 

delay. 

13. ¶The third Barker criteria we consider is whether the defendant has asserted her 

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speedy trial right. If the right to speedy trial is invoked any time prior to the 

commencement of trial, this criteria is satisfied. See Bruce, ¶ 57. In this case, Kipp 

filed a motion to dismiss based upon violation of her speedy trial rights on 

September 23, 1997, 17 days before trial. Accordingly, Kipp asserted her right to a 

speedy trial in a timely fashion.

14. ¶Finally, we consider prejudice to the defendant. It is the State's burden to 

demonstrate that Kipp was not prejudiced by (1) pretrial incarceration, (2) anxiety or 

concern, or (3) impairment of defense. See Bruce, ¶ 68. 

15. ¶Kipp posted bond shortly after she was charged, and concedes that she was not 

unduly prejudiced by pretrial incarceration. 

16. ¶"Anxiety and concern are an inherent part of being charged with a crime, and . . . 

[the State's] 'burden to show a lack of anxiety becomes considerably lighter in the 

absence of more than marginal evidence of anxiety.'" Bruce, ¶ 70 (citing State v. 

Williams-Rusch (1996), 279 Mont. 437, 452, 928 P.2d 169, 178). In this case, Kipp 

contends that she was prejudiced by anxiety and concern because she is the 

custodial parent of two minor children faced with potential incarceration and 

because she was denied employment as a result of the charges. The State offers no 

evidence that Kipp was not prejudiced by anxiety or concern and, therefore, 

consistent with our presumption, we conclude her anxiety and concern was real. 

17. ¶Kipp also asserted that her defense was impaired by the delay in this case because 

the only eyewitness to the alleged crimes has not been seen since March 1997. 

18. ¶The loss of a "main witness" as a result of delay attributable to the State is 

prejudicial to the defense. See Bruce, ¶ 73. The State has failed to rebut the 

presumption that Kipp's defense was impaired by the delay in her prosecution.

19. ¶As we pointed out in Bruce:

A presumption has been defined as an inference as to the existence of one fact from the 

existence of some other fact founded on logic or on a previous experience of their 

connection. A true presumption is a rule of law laid down by the courts which attaches to 

facts certain procedural consequences, such as the shift in the burden of evidence 

production. . . .

. . . A presumption . . . attaches definitive probative value to certain facts. If the 

presumption is conclusive, it mandates a particular conclusion; if it is rebuttable, it 

mandates the conclusion in the absence of contradictory evidence. 

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22A C.J.S. Criminal Law § 695 (1985).

Bruce, ¶ 33.

1. ¶In other words, once the presumption attached, it was not incumbent on the 

defendant to prove prejudice. It was incumbent on the State to disprove prejudice. 

Because it did not do so, the presumption of prejudice prevails. 

2. ¶ Furthermore, even though the District Court did not have the benefit of the Bruce

decision at the time of its decision in this case, this Court has long presumed 

prejudice after the passage of less time than elapsed in this case, as the following 

discussion from Bruce indicates:

We first discussed the effect of presumptive prejudice in Fitzpatrick [v. Crist (1974)], 165 

Mont. [382] at 388, 528 P.2d [1322] at 1326, where we were concerned with a delay of 

seven months. There we held that:

We emphasize this delay is not considered a per se violation of petitioner's right to a 

speedy trial, but under the circumstances here it is thought long enough to shift to the state 

the burden of explaining the reason for the delay and showing absence of prejudice to 

petitioner.

In State v. Steward (1975), 168 Mont. 385, 389, 543 P.2d 178, 181, we cited with approval 

United States v. Rucker (D.C.Cir.1972), 464 F.2d 823, 825, where that court held that:

A delay of over one year between arrest and trial raises a Sixth Amendment claim of 

"prima facie merit." Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684 

(1966). It places on the Government the necessity of justification, the burden of which 

increases with the length of delay. . . . When the delay approaches a year and a half, as in 

this case, the Government must provide a justification which convincingly outweighs the 

prejudice which can normally be assumed to have been caused the defendant.

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In State ex rel. Sanford v. District Court (1976), 170 Mont. 196, 199, 551 P.2d 1005, 

1007, we held that a ten-month delay between arraignment and trial established a prima 

facie case of denial of the right to a speedy trial.

In [State v.] Fife, 193 Mont. [486] at 491, 632 P.2d [712] at 715, we cited Moore v. 

Arizona (1973), 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183, 185, for the principle 

that "Barker v. Wingo expressly rejected the notion that an affirmative demonstration of 

prejudice was necessary to prove a denial of the constitutional right to a speedy trial."

In State v. Britton (1984), 213 Mont. 155, 689 P.2d 1256, we had the following to say 

about the presumption of prejudice from a delay which was less than the delay in this case:

Here it was the State's burden to rebut the presumption of prejudice caused by the 396-day 

delay. The State has not sufficiently done so, and we therefore conclude the delay has 

resulted in prejudice to the defendant . . . . [I]t is nonetheless clear defendant had no duty 

to prosecute himself and the State had the burden to proceed in a manner that would 

protect his constitutional right to a speedy trial. The State did not do so, and the delay 

continued with the State giving no constitutionally acceptable explanation for the 

substantial delay. 

Britton, 213 Mont. at 162-63, 689 P.2d at 1261.

In State v. Waters (1987), 228 Mont. 490, 743 P.2d 617, we explained the effect of 

"presumptive prejudice" as follows:

The delay in the instant case gives rise to a rebuttable presumption of prejudice. In order 

to rebut the presumption, the State must come forward with evidence showing that the 

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defendant was not prejudiced by the delay and that there is a reasonable excuse. 

Waters, 228 Mont. at 493, 743 P.2d at 619 (citing State v. Ackley (1982), 201 Mont. 252, 256, 653 P.2d 

851, 853).

We have followed the rule that a delay less than that found in this case gives rise to a 

presumption of prejudice which must be rebutted by direct evidence produced by the State 

in State v. Matthews (1995), 271 Mont. 24, 28, 894 P.2d 285, 287, State v. Heffernan

(1991), 248 Mont. 67, 71, 809 P.2d 566, 568, State v. Curtis (1990), 241 Mont. 288, 299, 

787 P.2d 306, 313, State v. Wombolt (1988), 231 Mont. 400, 403, 753 P.2d 330, 331, State 

v. Haskins (1986), 220 Mont. 199, 202, 714 P.2d 119, 121, State v. Cutner (1984), 214 

Mont. 189, 192, 692 P.2d 466, 467, State v. Chavez (1984), 213 Mont. 434, 443, 691 P.2d 

1365, 1370, State v. Tiedemann (1978), 178 Mont. 394, 399, 584 P.2d 1284, 1288, and 

State v. Cassidy (1978), 176 Mont. 385, 390, 578 P.2d 735, 738. We have also recently 

applied the rule in State v. Tweedy (1996), 277 Mont. 313, 320, 922 P.2d 1134, 1138, 

where the delay was greater than the delay in this case.

Bruce, ¶ 25-31.

1. ¶We pointed out in Bruce that only in several recent cases had the Court declined to 

strictly enforce the presumption of prejudice. However, even those cases paid lip 

service to the principle. Bruce, ¶ 32. 

2. ¶In fact, the District Court recognized the State had the burden to disprove prejudice 

and acknowledged as much in its order denying Kipp's motion to dismiss where it 

stated that:

[I]n this case 389 days have passed. This delay is long enough to trigger further inquiry of 

the remaining Barker factors and creates a rebuttable presumption of prejudice. The State 

has the burden of rebutting the presumption by providing a reasonable explanation for the 

delay and showing that the defendant was not prejudiced. State v. Heffernan (Mont. 1991), 

809 P.2d 566.

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1. ¶Kipp's motion was denied, however, based on the District Court's conclusion that 

Kipp was responsible for the majority of delay. In that regard, the District Court 

held:

The court holds that the defendant's right to a speedy trial was not violated because 

defendant's own actions caused much of the delay and the prejudice alleged to result from 

that delay.

1. ¶We conclude that the State violated Kipp's right to a speedy trial. Therefore her 

conviction is reversed and the charges against her are dismissed.

2. ¶Based on this result, the other issues raised by Kipp's appeal need not be addressed. 

/S/ TERRY N. TRIEWEILER 

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

/S/ WM. NELS SWANDAL

District Judge, sitting for Justice William E. Hunt, Sr.

/S/ MIKE SALVAGNI

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District Judge, sitting for Justice James C. Nelson

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