No. 82-100 INTHE SUPREPIE COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff andAppellant,

GORDON A. BAILEY, Defendant and Respondent.

AL3pealfrom: District Court of theFourthJudicial District, Inand. fortheCounty of Missoula, The Honorable James B. Wheelis andThe HonorableJohn S. IJenson, Judges presiding.

Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Robert L. Deschamps, 111, CountyAttorney, Missoula, Montana For Resgondent: Fred R. Van Valkenburg; Smith, Connor & Van Valkenburg, Missoula, I~Iontana

Submitted on Briefs: September 23, 1982 Decided: December 16, 1982

Filed: 

## DEC

## 16 

# ?SB2Mr. 

### JusticeGene B. 

### Dalydelivered theOpinion of 

### the Court.

This case 

### comes before thisCourt on appeal from the District 

### Court of the Fourth Judicial District, 

### Missoula County. The District 

### Court dismissd the charge of attempted sale 

### of dangerous drugs, a felony, on the grounds that the defendant was

### denied his rightto speedy trial. The defendant, Bailey, 

### was arrested and charged with the felony offense of attempted sale of dangerous drugs on February 18, 1981. He 

### waived preliminaryhearing. On March 31 an information 

### was filed. The defendant appeared in District 

### Court on April 22, 

### 1981, and moved to dismiss the information on the grounds that it 

### was 

### filed five days beyond the thirty day 

### time limit 

### set out in section 46-11-203, MCA. 

### That information 

### was dismissed pursuant 

### to the defendant's motion on May 26. After that dismissal and in apparent reliance on the District 

### Court's order, the defendant moved to Indiana and obtained employment. After the dismissal, the State submitted a motion to the District 

### Court requesting that it 

### be allowed to renew its 

### original motion for leave to file the information. This motion 

### was denied on July 22 and on July 23, 1981, the State moved the District

### Court to reconsider themotion forrenewal. Thatmotion

was 

### alsodenied onAugust 12. On the same day the motion to reconsider was 

### denied, the State filed a new information alleging attempted sale 

### of dangerous drugs, a felony. This 

### was done pursuant to the suggestionof theDistrict 

### Court in 

### itsorderdenying themotion. On that day the date of the initial appearance was set 

### for September 14. This was done pursuant 

### to an agreement between the State and the defendant, to allow 

### him to 

### avoid extradition to Montana. The initial appearance and arraignment

### was held on September 14. At 

### that 

### time the trial date 

### was set for September 21, but



### was postponed on the applicationof the defendant until February 1982. On January 12, 1982, the defendant moved 

### to dismiss thecharge on the ground that he 

### was denied his right 

### to speedy trial. This motion 

### was granted on February 2. In its order dismissing the charge, the District Court noted that the 

### time between the dismissal of the first information and the filing of the second should be charged against the State, because in reality this 

### is but one cause of action continuously pursued by the State. Two issues arepresented in thiscase: 1. Whether the District Court erred when it included the 

### time between the dismissal of the first information and the filingof the second in 

### its calculation of 

### time to see if speedy 

### trial had been denied? 2. Whether the 

### District Court erred when it determined the defendant

### was denied a speedytrial? Inthe 

### case athand, the Statecontends thatthe 

### timebetween dismissal of the first information and the filing of the second should not be included in the computation of 

### time for 

### a speedy 

### trial, and that the speedy trial clock begins 

### to run anew upon the filing of the second information. Based on that, they 

### also contend that looking 

### at 

### all the factors enumerated under Barker

v. Wingo (1972), 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182, there 

### is no denial of 

### a speedy

### trial here. In support of 

### its position, the Stateprincipally 

### relies on four

### cases, Statev. Sanders (1973), 163Mont. 209, 516 P.2d 372; State 

### v. Fife (1981)r 632 P.2d 712, 38 St.Rep. 1334; Arnold 

### v. McCarthy (9th Cir. 1978), 566 F.2d 1377; and, United States v. McDonald (1982)f-- - U.S.
-. - 

### ,71L.Ed.2d 696, 102S.Ct. 1497. As to the first two decisions, - Sanders

-----

. -- and -- Fife, -- they held that when a cause 

### is reversed and re-anded for 

### retrial, the speedy trial clockbegins anew on the date of the remittitur and continues until trial. We do not believe that the rule 

### set out inSanders and Fife -- 

### is applicable 

### to the present situation. Both those 

### cases deal with post-appeal situations inwhich the defendant has alreadybeen tried but reversal 

### is required due to 

### someimpropriety in the proceeding

# . But, this 

### is not the situation in Mr. Bailey's case. It 

### was through an error in filing the initial information that it 

### was dismissed. Although no formal charges 

### were pnding during the interim between the 

### two informations, Bailey still seemed 

### to technically be an accused. During that interim, the deputy county attorney attempted 

### to continue hisprosecution. He tried 

### twice tohave the in£ 

### ormation reinstated

### , through motions

# . These attempts 

### were opposed by the defendant through his counsel. The District Court, in 

### its order denying the motion to reconsider, had to point out to the county attorney how to proceed. Only then was the proper documentation 

### to refile the charge submitted 

### to the court. Under such circumstances, Bailey 

### is still an accused 

### as his liberty 

### is restrained, because of the uncertainty

as 

### to whether his presence 

### willbe required, that these efforts 

### to prosecute cause in his normal life, and he 

### is subject 

### to public accusation 

### as these attempts

### were repeatedlymade in open court. This places him in a comparable situation of 

### a defendant who has been arrested thus putting him in the category of accused. United States v. Marion (1971), 404 

### U.S. 307, 321, 30 L.Ed.2d 468, 92 S.Ct. 455. Being an accused 

### is all that 

### is required for the right 

### to speedy 

### trial 

### to attach. State v. Larson (1981),623 P.2d 954, 957. The Arnold 

### case relied on by the State 

### is factually distinguishable from the 

### case athand. Despite it dealing with a period between the dismissal of a charge aftera

### mistrial and the subsequent refiling of that charge, the prosecutor in that case did not make attempts to continue prosecution in the interim between the firstand second charging. This cannot be said of the county attorney in Bailey's case though. Aspointed out above, he tried 

### to continue the prosecution, between the dismissal of the firstand the filingof the second charge. Also, 

### as pointed out above, thiscontinued attempt toprosecute placed Bailey in

### a position 

### similar to thatof one who had been arrested thusmaking

### him an accused. The State alsorelies on the recent plurality opinion of the United States Supreme Court inUnited Statesv. McDonald, supra. In that case a captain stationed atFort Bragg, North Carolina,

was formally charged with the murder of his wife and children. Those charges 

### were dismissed and he was honorably discharged. But, at the request of the Justice Department, the Amy's Criminal Investigation Division (CID) 

### continued its 

### investigation. All

### the information gathered was forwarded to theJustice Department. The in£ ormation 

### was ultimatelypresented to a grand jurywhich indictedMcDonald forthemurders. However, the McDonald case 

### is also distinguishable from the

one presently before us. Despite McDonald being aware of the ongoing investigation that took place during the several years between the dismissal of the army charges and his subsequent indictment by the grand jury, it 

### cannot be said thathe was technically an accused. But, this is 

### not the case with Bailey. Despiteno formal chargespending, it 

### is 

### clearfrom the record he is 

### an accused, because aspointed out above, in our discussions of the other cases the Staterelies on, he is 

### in a similarposition 

### to an arrested person due to the State's continued efforts to 

### charge him during the interim between the first and second information. We 

### therefore hold that under these facts that Bailey 

### meets the threshold requirement of being an accused, thus, the rightto

a speedytrial attaches. The Statecontends that inapplying the ad hoc test, 

### which is 

### mandated by Barker v. Wingo, supra, 

### to determine if adefendant's rightto speedytrialhas been denied thatthe clock should begin torun anew on the filingof the second information. But, as set out above, this is 

### not the case, because Bailey was an accused from the timeof his initial arrest, due 

### to the proceedings that took place in the interim between the dismissal of the first information and the filingof the second and the effect of those

### proceedingson him. Therefore, allthatremains to 

### be done is 

### to apply theBarker --- 

### ad hoc balancing test toBailey's case. This Court has set 

### out how this test is 

### to be applied in Statev. Larson, supra, where it 

### stated: "Four factors to be considered under the analysis are: (1) 

### length of delay; (2)reason for delay; (3) the defendant's assertion of the right; and (4)prejudice tothe defendant. Barker, - 

### 407 U.S. at530, 92 S.Ct. at2191. It 

### must be remembered, however, none of the four factors is 

### recognized as eithera necessary

### or sufficient condition to a finding that the right to a speedy trial 

### has been deprived. Rather, they 

### are related factors and must be considered together with such other 

### circumstances as may be relevant. The Court must still

### engage ina difficultand sensitive balancing process. See Barker, 407 U.S. at 533, 92 S.Ct. at2193." 

### 625-Fr2d at

### 957. Length of delay is 

### the firstfactor

### to be 

### looked atunder the test. 

### This is 

### the triggering mechanism, Statev. Fife, 632 P.2d at715, and unless there is 

### a period of delay long enough to be 

### presumptively prejudicial

## , no further inquiry is 

### required; 

### State

v. 

### Armstrong (1980), 616 P.2d 341, 351, 37 St.Rep. 1563. Bailey claims a delay

### of 216 days inthiscase. However, in

ourview, only186days, the period from his initial 

### arrestuntil the filingof the second information, should be used to determine if 

### the delay is 

### presumptivelyprejudicial. The remaining time 

### is due tothe defendants need fortime 

### to put hisaffairs inIndiana in order prior to returning to 

### Montana to 

### face the drug charges and a 

### request fora continuance granted to him. The 186 days in this case is 

### sufficient to trigger the inquiry to see if 

### the defendant's right to 

### speedy trial 

### was 

### denied. The length of the delay necessary to 

### provoke such an inquiry is 

### dependent on the peculiar circumstances of the case and a 

### lesser 

### delaywill

### be tolerated for simply streetcrimes, 

### as


### wehave here, than forcomplex ones; Barker v. Wingo, 407 U.S. 

### at

NOW

### we must look at the second factorunder the 

### test 

### setout by Barker, the reason for the delay. It 

### is clear from the factsthat the cause of this delay 

### was the deputy county attorney's



### error in filing the information. Therefore, the entire 186days from Bailey's 

### arrest until the second information 

### was filed 

### is attributable 

### to the State. The third factor 

### to be considered 

### is the defendant's 

### assertionof hisright. The State, when discussing thisfactor, urges thisCourt toadopt the position thatBailey's assertion

### was sufficient toraise inquiry 

### as 

### to whether the right

### was denied, but 

### is insufficient 

### to sustain the defendant's 

### claim on 

### its merits because the right was not asserted often enough. However, this 

### is not the 

### case, because as long as the defendant has asserted his right to speedy 

### trial prior 

### to trial, he has 

### met the third factor in this 

### test; State v. Steward (1975)r 163Mont. 385, 543 P.2d 178, 182; Statev. Larson, 623 P.2d 

### at958. The State, when discussing the assertion of the right, 

### also claims that Bailey did not want 

### a speedy trial because he exercised his right to have the information dismissed and resisted 

### its reinstatement after the State failed 

### to comply with section 46-11-203, MCA. This position 

### is untenable. We cannot penalize the defendant for exercising his statutory rights or for the prosecutor's mistake. To do so would be 

### to deprive him of due process of 

### lawwhich 

### is guaranteed underArticle 11, Section7of the Montana Constitution. Neither can 

### we force him to chose one right over another, this was made 

### clear by the United States Supreme Court in Simmons 

### v. United States (1968), 390 U.S. 377, 19L.Ed.2d 1247, 88 S.Ct. 967, where 

### it addressed 

### a similar issue and stated: 

# ".

. . we find it intolerable that one constitutional right should have 

### to be surrendered 

### to assert another." Because thisanalysis 

### seems to apply with equal strengthnot only toconstitutionalrightsbut to allrights, Bailey should not and cannot be forced 

### to chose between his statutory right under 

### section 46-11-203, MCA, and his constitutional right 

### to 

### a speedy 

### trial. The fourth factor 

### to be considered under the Barker analysis

### is thatof prejudice: "Prejudice in 

### a speedy 

### trial context 

### is 

### to be assessed in light of the interests of defendants which the speedy 

### trial right 

### was designed 

### to protect. In this regard, defendants' interestshave been identified 

### as: 

### '(i) 

### to prevent oppressive pre

### tri

### a1 incarceration; (ii)

### to minimize anxiety and, concernof the accused; and (iii)

### to limitthe possibility that the defense 

### will be impaired.

## ' Barker v. Wingo, 407 U.S. 

### at 532, 92 S.Ct. at2192." Statev. Larson, 623 P.2d at658-659. In addressing this factor, the State asserts that no prejudice whatsoever exists. However, the defendant 

### claims prejudice due 

### to the fact that he 

### was required 

### to give up his job in Indiana and return 

### to Montana to defend the charges. Economic hardship has been recognized 

### as one form of prejudice that can flow from the deprivation of 

### a defendant's speedy 

### trial right; State

### v. Harvey (1979)r603P.2d 661, 668, 36 St.Rep 2035; United States v. Marion, 404 U.S. 

### at 320. 

### Here, the county attorney 

### claims that any economic 

### loss is not prejudice caused by the State's conduct, 

### as 

### it 

### was the result of Bailey's ignorance of the 

### law and not as 

### a result of the State's prosecution of this offense

# . We disagree. The economic hardship the defendant suffered 

### is a direct result of 

### error inthe handling of this

### case by the State. The defendant's 

### losswould have never occurred if the filingof the information would have been handled properly inthe firstplace. The length of delay in this case shifted the burden to the State 

### to explain the reasons for 

### it and 

### to show the absence of prejudice 

### to the defendant; State v. Fife, 632 P.2d at715. It did neither adequately, as it is apparent that the State's own actions caused the delay and 

### as shown above there

### was prejudice. These considered alongwith the other relevant circumstances such

as the length of delay and the defendant's status

### as an accused, during the entireperiod of delay attributable 

### to the State, support the District Court's finding that the defendant 

### was denied hisright 

### to speedy 

### trial. We theref

### ore aff

### irm. Justice 

## - 8 -*' 8'I,Ve concur: 

### &do4

ChiefJustice