No. 87-03 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsLONNIE MOEHR, 

Defendant and Respondent, 

APPEAL FROM: The District Court of the Thirteenth Judicial District, 

In and for the County of Big Horn, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Assistant Attorney General, Helena 

Joe A. Rodriguez, County Attorney, Hardin, Montana 

For Respondent: 

James E. Torske, Hardin, Montana 

Submitted on Briefs: May 21, 1987 

Decided: June 24, 1987 

Filed: JUN 2 4 1987 

*I 

Clerk 
Mr. Justice R.C. McDonough delivered the Opinion of the 

Court. 

The State of Montana appeals the September 18, 1986, 

order of the Thirteenth Judicial District Court, County of 

Big Horn, granting defendant's motion to dismiss for lack of 

speedy trial. We reverse. 

On October 22, 1985, the Big Horn deputy county attorney 

filed an information and affidavit of probable cause alleging 

attempted sexual intercourse without consent by defendant, as 

specified in 55 45-4-103 and 45-5-502(1), MCA. 

Defendant was arrested and plead not guilty to the 

charge of attempted sexual intercourse without consent at his 

arraignment October 22, 1985. On the same date, defendant 

was released from jail upon posting a $5000 bond. 

An omnibus hearing was held February 28, 1986, and trial 

was scheduled for April 21, 1986. Immediately before trial 

on April 21, 1986, the State moved to amend the information 

by changing the reference code section from § 45-5-502, MCA, 

to S 45-5-503, MCA. Section 45-5-502, MCA, is the sexual 

assault statute and 5 45-5-503, MCA, addresses sexual intercourse without consent. Defendant objected to the amendment 

and requested a continuance should the motion to amend be 

granted. The district judge granted the motion to amend and 

also granted defendant's request for continuance. 

On May 20, 1986, the deputy county attorney filed a 

motion for trial date requesting trial in the immediate 

future to avoid any speedy trial problems. Trial was scheduled for August 18, 1986. On that date, Judge Luedke deemed 

himself disqualified, and the parties agreed to have Judge 

Sande appointed as presiding judge. Trial was rescheduled 

for August 20, 1986, but was vacated due to the unavailability of a court reporter. Defendant filed a motion to dismiss 
for lack of speedy trial on August 22, 1986. A hearing on 

the motion to dismiss was held September 12, 1986, and the 

District Court subsequently entered its order granting the 

motion to dismiss. 

The District Court found the delay of 304 days to be 

attributable to the State. The court disagreed with the 

State's contention that the delay following defendant's 

request for continuance should be chargeable to defendant. 

The court found the amendment to the information to be one of 

substance and not of form, therefore defendant was entitled 

to a continuance without defendant being charged for delay 

thereafter. The State appeals and raises the following 

issue: 

Whether the District Court erred in granting defendant's 

motion to dismiss for lack of a speedy trial? 

The State contends that the amendment to the information 

was one of form and not of substance. Therefore, the continuance was not necessary and the subsequent delay is chargeable to defendant. We agree. 

While the information incorrectly cited the sexual 

assault statute, 5 45-5-502(1), MCA, the intended charge of 

attempted sexual intercourse without consent is quite clear 

in the information: 

Jim Vogel, Deputy County Attorney of Big Horn 

County, deposes and says that on or about October 

20, 1985, near Jack's Homart Store and 

Graham-Staunton Chevrolet on Custer Street, Big 

Horn, County, Montana, the above-named Defendant 

committed the offense of ATTEMPTED SEXUAL INTERCOURSE WITHOUT CONSENT as specified in 45-4-103 and 

45-5-502 (I), M.C.A., 1983. 

The facts constituting the offense are: 

That at the above place and the above time, 

the above-named defendant committed the offense of 

ATTEMPTED SEXUAL INTERCOURSE WITHOUT CONSENT in 

that he knowingly attempted to have sexual 
intercourse without consent with another, namely, 

Mary Looks Behind, not his spouse, with the victim 

sustaining bodily injury, namely, a dislocated 

shoulder, and numerous bruises during the assault, 

contrary to the form, force and effect of the 

statutes in such case, made and provided and 

against the peace and dignity of the State of 

Montana. 

Section 45-5-503 (1) , MCA, defines sexual intercourse 

without consent as, "A person who knowingly has sexual intercourse without consent with a person of the opposite sex not 

his spouse commits the offense of sexual intercourse without 

consent." The allegations in the information list all the 

elements of the crime of attempted sexual intercourse without 

consent. 

The recent case of State v. Handy (Mont. 1986), 719 P.2d 

766, 43 St.Rep. 897, addresses the issue of sufficiency of an 

information which includes an incorrect statutory cite. In 

Handy, the information charged the defendant with violating 

61-8-406, MCA, "in that said defendant did knowingly or 

purposely or negligently drive or be in actual physical 

control of a motor vehicle while under the influence of 

alcohol." The cite to § 61-8-406, MCA, which concerns operation of a motor vehicle with a blood alcohol concentration of 

0.10 or more, was incorrect. The State moved to amend the 

information by changing the statutory cite to 61-8-401, 

MCA, which contains language nearly identical to that used in 

the information. This Court found amendment to be proper 

because the defendant was clearly apprised of the charge. 

719 P.2d 768, 43 St.Rep. 900. 

In State v. Longneck (1981), 196 Mont. 151, 640 P.2d 

436, this Court stated, " [W] hen the facts, acts and circumstances are set forth with sufficient certainy to constitute 

an offense, it is not a fatal defect that the complaint gives 

the offense an erroneous name." 196 Mont. 154, 640 P.2d 438. 
In the present case, the facts set forth in the information 

leave no room for doubt that defendant was being charged with 

attempted sexual intercourse without consent. Additionally, 

the offense was correctly named; this Court has previously 

held that an information is sufficient if it properly charges 

an offense in the language of the statute describing the 

offense. State v. Hankins (Mont. 1984), 680 P.2d 958, 41 

St.Rep. 762. 

We find the information in this case fully apprised 

defendant of the offense for which he was being charged. 

Thus, the amendment to the information was one of form which 

did not prejudice the rights of defendant and trial could 

have occurred April 21, 1986, as scheduled without impairing 

the defense. Section 46-11-403(2), MCA, provides: "The 

court may permit an information to be amended as to form at 

any time before verdict or finding if no additional or different offense is charged and if the substantial rights of 

the defendant are not prejudiced." 

We find the period of delay incurred following the grant 

of continuance to be chargeable against defendant. The 

record shows that trial would have occurred within six months 

of the filing of the charge had defendant not moved for 

continuance. Defendant being responsible for the subsequent 

delay, the State does not have the burden of explaining the 

delay or showing absence of prejudice to defendant. See 

State v. Tiedemann (1978), 178 Mont. 394, 584 P.2d 1284. 

The District Court is reversed and this matter remanded 

for proceedings consistent with this opinion. 

@C-L Justice 

We Concur: 
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Justices