No. 82-100 

IN THE SUPREPIE COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Appellant, 

GORDON A. BAILEY, 

Defendant and Respondent. 

AL3peal from: District Court of the Fourth Judicial District, 

In and. for the County of Missoula, The Honorable 

James B. Wheelis and The Honorable John S. IJenson, 

Judges presiding. 

Counsel of Record: 

For Appellant : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert L. Deschamps, 111, County Attorney, 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 ?SB2 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This case comes before this Court 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 

right to 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 preliminary hearing. 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 the motion for renewal. That motion 

was also denied on August 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 

suggestion of the District Court in its order denying the motion. 

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 application of the defendant until February 

1982. On January 12, 1982, the defendant moved to dismiss the 
charge 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 are presented in this case: 

1. Whether the District Court erred when it included the 

time between the dismissal of the first information and the 

filing of 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 speedy trial? 

In the case at hand, the State contends that the time between 

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 State principally relies on 

four cases, State v. Sanders (1973), 163 Mont. 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. -. - , 71 L.Ed.2d 696, 102 S.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 clock begins anew on the date of the remittitur and 

continues until trial. We do not believe that the rule set out 

in Sanders and Fife -- is applicable to the present situation. Both 

those cases deal with post-appeal situations in which the defendant has already been tried but reversal is required due to some 
impropriety in the proceed ing . 

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 his prosecution. He tried 

twice to have the in£ ormat ion reinstated , through mot ions . 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 will be required, that these efforts 

to prosecute cause in his normal life, and he is subject to 

public accusation as these attempts were repeatedly made 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 at hand. Despite it dealing with a 

period between the dismissal of a charge after a 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 first and second charging. This cannot be said of the 

county attorney in Bailey's case though. As pointed out above, 

he tried to continue the prosecution, between the dismissal of 

the first and the filing of the second charge. Also, as pointed 

out above, this continued attempt to prosecute placed Bailey in a 

position similar to that of one who had been arrested thus making 
him an accused. 

The State also relies on the recent plurality opinion of the 

United States Supreme Court in United States v. McDonald, supra. 

In that case a captain stationed at Fort 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 the Justice 

Department. The in£ ormation was ultimately presented to a grand 

jury which indicted McDonald for the murders. 

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 that he was technically an accused. But, this is not the case with Bailey. 

Despite no formal charges pending, it is clear from the record he 

is an accused, because as pointed out above, in our discussions 

of the other cases the State relies on, he is in a similar position 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 right to 

a speedy trial attaches. 

The State contends that in applying the ad hoc test, which is 

mandated by Barker v. Wingo, supra, to determine if a defendant's 

right to speedy trial has been denied that the clock should begin 

to run anew on the filing of the second information. But, as set 

out above, this is not the case, because Bailey was an accused 

from the time of his initial arrest, due to the proceedings that 

took place in the interim between the dismissal of the first 

information and the filing of the second and the effect of those 
proceed ings on him. 

Therefore, all that remains to be done is to apply the Barker - -- 

ad hoc balancing test to Bailey's case. This Court has set out 

how this test is to be applied in State v. 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 to the defendant. 

Barker, - 407 U.S. at 530, 92 S.Ct. at 2191. It 

must be remembered, however, none of the four 

factors is recognized as either a 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 in a difficult and sensitive 

balancing process. See Barker, 407 U.S. at 

533, 92 S.Ct. at 2193." 625-Fr2d at 957. 

Length of delay is the first factor to be looked at under the 

test. This is the triggering mechanism, State v. Fife, 632 P.2d 

at 715, 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 in this case. However, in 

our view, only 186 days, the period from his initial arrest until 

the filing of the second information, should be used to determine 

if the delay is presumptively prejudicial. The remaining time is 

due to the defendants need for time to put his affairs in Indiana 

in order prior to returning to Montana to face the drug charges 

and a request for a 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 delay will be tolerated for simply street crimes, as 

we have here, than for complex ones; Barker v. Wingo, 407 U.S. at 

NOW we must look at the second factor under the test set out 

by Barker, the reason for the delay. It is clear from the facts 
that the cause of this delay was the deputy county attorney's 

error in filing the information. Therefore, the entire 186 days 

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 assertion of his right. The State, when discussing this factor, urges 

this Court to adopt the position that Bailey's assertion was suff icient to raise 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 163 Mont. 385, 543 

P.2d 178, 182; State v. Larson, 623 P.2d at 958. 

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 law which is guaranteed under Article 11, Section 7 of 

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, 

19 L.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 this analysis seems to apply with equal strength not only 

to constitutional rights but to all rights, 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 that of 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' interests have been identified as : 

'(i) to prevent oppressive pre tr i a1 

incarceration; ( ii) to minimize anxiety and, 

concern of the accused; and (iii) to limit the 

possibility that the defense will be 

impaired. ' Barker v. Wingo, 407 U.S. at 532, 

92 S.Ct. at 2192." State v. Larson, 623 P.2d 

at 658-659. 

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)r 603 P.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 in the handling of this case by 

the State. The defendant's loss would have never occurred if the 

filing of the information would have been handled properly in the 

first place. 

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 at 715. 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 along with the other relevant circumstances such 

as the length of delay and the defendant's status as an accused, 

during the entire period of delay attributable to the State, support the District Court's finding that the defendant was denied 

his right to speedy trial. 

We theref ore af f irm. 

Justice 

- 8 -*' 

8' 
I,Ve concur: 

&do4 

Chief Justice