No. 84-338



### IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

STATEOF MONTANA, Plaintiff and Respondent,
-vsCARL ROGER LUNDBLADE, Defendantand Appellant.

APPEAL FROM: District Court of the SixteenthJudicial District In and for the County of Rosebud, The HonorableAlfred B. Coate, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Moses Law Firm;Jay F. Lansing, Billings,Montana
For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana JohnForsythe,CountyAttorney, Forsyth,Montana

Submitted on Briefs: October 18, 1984 Decided:November 28, 1984

ClerkMr. JusticeFrank B. Morrison, Jr. delivered theopinion of theCourt. 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 toten years intheMontana StatePrison, with fiveyears suspended. Defendant requested a continuance of his trial on seven occasions. A11 motions were denied. Defendant now appeals the denials of hismotions for a continuance. We reverse and remand the cause to the District Court fora new trial. An information was filed December 2, 1983, charging defendant with the offense of sexual intercourse without consent. The offense allegedlyoccurred thenight of November 29, 1983. Defendant retained Mr. Kenneth Wilson ashis attorney and on December 9, 1-983, pled not guilty to the charge. Mr. Wilson continued torepresent defendant until a disagreement arosebetween thetwo concerningthehandling of
a hearing on the State's motion to forfeitbond. Two days after that hearing, May 2, 1984, defendant released Mr. Wilson ashisattorney. 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 DistrictCourt would grant a continuance toallow him sufficient time to prepare the case. Defendant moved for a continuance on May 8. The following day, Mr. Wilson filed hismotion towithdraw ascounsel fordefendant and requested. the trialbe vacated in order toprovide substitute counsel with sufficienttimetoprepare thecase. Wilson's motion to withdraw was granted and defendant's motion for a continuance
was denied

### onMay 11, 1984. Trial was set tobegin on Monday, May 14, 1984. Over the weekend, defendant attempted to secure Mr. Charles F. Moses as his attorney, tono avail. The morning of trial,

### defendant appeared without an attorney and moved for a continuance. Themotionwas denied. Voir dire commenced and a jurywas selected and swornon the morning ofMay 14, 1984. One of the selected jurors had
a 

### sister whom had been sexually assaulted. At the noon recessdefendant againmoved for a continuanceandwaived 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 continuanceon the ground that defendant had not contacted him until 11:30 a.m. the morning of trial. The motion was denied and the trialproceeded. 011

### May 16

## , 1984, the jury founddefendant 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 

### continuanceof 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-ismade more than 30 days after arraignment or at any time after ~tria:L ha:; becrun, 

### the courtmay 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-llbe considered in the light of the diligence shown on thepart 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), 131Mont. 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 includeshis 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 whichgives him the right to counsel also means that counsel shall be given a reasonable time to prepare before trial." Blakeslee, 131Mont. at 54, 306 P.2d at 1106. Finally,the denial of amotion for a continuance cannot be reversed absent a showing of resultant prejudice to the defendant. Statev. Kirkland (19791,184Mont. 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 counselwho was denied any time in which to prepare, denied defendant his constitutional right to a fair trial. That denial is sufficientprejudice towarrant a finding of abuse of discretion by the trial jud-ge. State

### v. Bradford (1978)

## , 175Mont. 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: Iconcur 

### in the result.