No. 84-338 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCARL ROGER LUNDBLADE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District 

In and for the County of Rosebud, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Jay F. Lansing, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Forsythe, County Attorney, Forsyth, Montana 

Submitted on Briefs: October 18, 1984 

Decided: November 28, 1984 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the opinion of 

the Court. 

Following a. jury trial in the Sixteenth Judicial District Court of Montana, defendant Carl Roger Lundblade was 

convicted of the offense of sexual intercourse without consent and sentenced to ten years in the Montana State Prison, 

with five years suspended. Defendant requested a continuance 

of his trial on seven occasions. A11 motions were denied. 

Defendant now appeals the denials of his motions for a continuance. We reverse and remand the cause to the District 

Court for a new trial. 

An information was filed December 2, 1983, charging 

defendant with the offense of sexual intercourse without 

consent. The offense allegedly occurred the night of November 29, 1983. Defendant retained Mr. Kenneth Wilson as his 

attorney and on December 9, 1-983, pled not guilty to the 

charge. Mr. Wilson continued to represent defendant until a 

disagreement arose between the two concerning the handling of 

a hearing on the State's motion to forfeit bond. Two days 

after that hearing, May 2, 1984, defendant released 

Mr. Wilson as his attorney. 

On May 3, 1984, defendant contacted Mr. Anthony Savage, 

an attorney in Seattle, Washington, and requested Mr. Savage 

to represent him. Savage declined to do so, unless the 

District Court would grant a continuance to allow him sufficient time to prepare the case. Defendant moved for a 

continuance on May 8. The following day, Mr. Wilson filed 

his motion to withdraw as counsel for defendant and requested. 

the trial be vacated in order to provide substitute counsel 

with sufficient time to prepare the case. Wilson's motion to 

withdraw was granted and defendant's motion for a continuance 

was denied on May 11, 1984. 

Trial was set to begin on Monday, May 14, 1984. Over 

the weekend, defendant attempted to secure Mr. Charles F. 

Moses as his attorney, to no avail. The morning of trial, 
defendant appeared without an attorney and moved for a continuance. The motion was denied. 

Voir dire commenced and a jury was selected and sworn on 

the morning of May 14, 1984. One of the selected jurors had 

a sister whom had been sexually assaulted. At the noon 

recess defendant again moved for a continuance and waived his 

right to a. speedy trial. He further stated that he was 

unable to afford an attorney. The court denied the motion 

but agreed to appoint Mr. Garry Bunke as defendant's 

attorney. 

Mr. Bunke accepted the case and appeared as defendant's 

counsel after the noon recess on May 14, 1984. Mr. Bunke 

moved for a continuance on the ground that defendant had not 

contacted him until 11:30 a.m. the morning of trial. The 

motion was denied and the trial proceeded. 011 May 16 , 1984, 

the jury found defendant guilty of the offense charged. 

The singular issue on appeal is whether the District 

Court abused its discretion in refusing to grant defendant's 

motion for a continuance of the trial. 

Motions for a continuance are governed by section 

46-13-202, MCA, which states: 

"Motion for a continuance. (1) The 

defendant or the state may move for a 

continuance. If the motion- is made more 

than 30 days after arraignment or at any 

time after ~tria:L ha:; becrun, the court may 

require that it be supported by 

affidavit. 

(2) The court may upon the motion of 

either party or upon the court's own 

motion order a continuance if the interests of justice so require. 

(3) All motions for continuance are 

addressed to the discretion of the trial 

court and sha-ll be considered in the 

light of the diligence shown on the part 

of the movant. This section shall be 

construed to the end that criminal cases 

are tried with due diligence consonant 

with the rights of the defendant and the 

state to a speedy trial." 
Thus our first determination becomes the diligence of 

defendant. The State argues that we should look at the 

overall diligence of defendant in determining over a 

six-month period of time that he and his attorney, Kenneth 

Wilson, were incompatible. However, it was not until the 

April 30, 1984, hearing that defendant was made fully aware 

of that incompatibility. The trial judge recognized it when 

he agreed to allow Mr. Wilson to withdraw as defendant's 

attorney. The same circumstances existed in State v. 

Blakeslee (1957), 131 Mont. 47, 306 P.2d 1103, where we held 

that given such an incompatibility, "it is of no moment how 

much time the defendant and his original attorney had had to 

prepare for trial." Blakeslee, 131 Mont. at 51, 306 P.2d at 

1105. The diligence we must look to is that of defendant 

once he recognized the incompatibility. Defendanti s efforts 

to secure new counsel were as diligent as possible. His 

efforts were thwarted due to lack of time, not lack of 

diligence. 

Defendant also expressed a willingness to waive his 

right to a speedy trial. In response, the trial judge stated 

that such a waiver did nothing to protect the State's right 

to a speedy trial. However, "[wlhile there is no doubt that 

the State has a right to a speedy trial, the defendant's 

right to a fair trial must take precedence over the State's 

right -- especially when the defendant has waived his right 

to a. speedy trial as is the case here." State v. Sotelo 

(Mont. 1984), 679 P.2d 779, 782, 41 St.Rep. 568, 571. 

Defendant's right to a fair trial includes his constitutional right to appear and defend in person and by counsel. 

Mont. Const. Art. 11, Section 24. In giving this right 

effect, it is not sufficient to merely appoint an attorney. 

That attorney must be granted sufficient time to both become 

familiar with and prepare defendant's case. "The rule which 
gives him the right to counsel also means that counsel shall 

be given a reasonable time to prepare before trial." 

Blakeslee, 131 Mont. at 54, 306 P.2d at 1106. 

Finally, the denial of a motion for a continuance cannot 

be reversed absent a showing of resultant prejudice to the 

defendant. State v. Kirkland (19791, 184 Mont. 229, 235, 602 

P.2d 586, 590. In this case, requiring defendant to go to 

trial and conduct voir dire without counsel and then to 

continue trial with counsel who was denied any time in which 

to prepare, denied defendant his constitutional right to a 

fair trial. That denial is sufficient prejudice to warrant a 

finding of abuse of discretion by the trial jud-ge. State v. 

Bradford (1978) , 175 Mont. 545, 549, 575 P.2d 83, 86. 

Defendant's conviction is reversed and this cause is 

We concur: 

~~dnYQ\R @u& 

Chief Justide 

Justices 

Mr. Justice L. C. Gulbrandson: 

I concur in the result.