No. 81-88 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

HAROLD mLVIN FIFE, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone. 

Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stacey and Jarussi, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Submitted on briefs: July 2, 1981 

Decided: August 20, 1981 

Filed: 

AUG 2 0 19% 
Mr. Justice Frank B. Morrison, Jr., delivered the opinion 

of the Court. 

This is an appeal from a conviction of robbery. The 

defendant wasllfirst tried on the charge April 17, 1979, and 

convicted. That conviction was reversed by this Court and 

remanded for a new trial. State v. Fife (1980), - Mont. - I 

608 P.2d 1069, 37 St.Rep. 600. The appellant was accused of 

the December 14, 1978, robbery of Mr. and Mrs. Curtis 

Workman. The facts are set forth in the first opinion and 

will not be restated. 

We reversed the conviction, holding the District Court 

had abused its discretion by denying the defendant's motion 

for continuance, made so that a subpoenaed witness, crucial 

to the defense of the case, could be compelled to attend and 

testify. Remittitur was ordered April 10, 1980. The State 

took no further action until September 11, 1980, when the 

District Court granted an order authorizing the return of 

the defendant from the Montana State Prison, to the Yell-owstone County jail. On October 8, 1980, the appellant made 

motions to suppress evidence seized from appellant's truck 

and the apartment the appellant shared with two other persons. The appellant also moved to dismiss the case on the 

grounds the appellant had been denied bail following reversal of his first conviction. Section 46-9-104, MCA. 

Bail had been originally set in January 1979 at $20,000. 

Following a hearing on the motion to set bail October 9, the 

court reduced bail to $15,000. Appellant could not post the 

reduced bail. The record shows the appellant has been 

continuously incarcerated since his arrest. 

The second trial was set for October 21, however, 

before trial, on October 17, the appellant made a second 
motion to dismiss contending deprivation of his right to 

speedy trial. The motion was denied. 

The second trial lasted three days and included the 

testimony of the absent defense witness. The appellant 

renewed his motion to dismiss for denial of his speedy trial 

right several times during the trial. After deliberation, 

the jury found the appellant guilty of robbery. 

Following trial, the appellant filed a motion for 

directed verdict notwithstanding the judgment and a motion 

for further hearing on the denial of speedy trial motions 

earlier filed. A brief hearing was held November 25; both 

motions were denied. On November 26, the appellant was 

sentenced to 20 years and from that judgment, the defendant 

appeals. 

Appellant raises the following issues: 

I-. Whether the District Court erred by denying appellant's motion to dismiss for failure to grant a speedy 

trial. 

2. Whether comment by a witness revealing the first 

trial was reversible error. 

3. Whether denial of the motion to suppress, which was 

based upon the record of the earlier trial, was reversible 

error. 

We find the first issue determinative and consequently 

need not address the additional issues raised. 

The right of any defendant to a speedy trial is guaranteed by the federal and state constitutions. U.S. Const., 

Amend. VI; 1972 Mont. Const., Art. 11, S24. When faced with 

a claimed denial of the right, this Court has applied the 

four part standard of review stated in Barker v. Wingo 

(1972) , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 2d 101. State 
v. Larson (1981), - Mont. , 623 P.2d 954, 38 St.Rep. 213; 

State v. Bretz (1979), Mont. 605 P.2d 974, 36 St.Rep. 

1037; State v. Harvey (1979), Mont. 603 P.2d 661, 

36 St.Rep. 2035; State v. Freeman (1979), - Mont. , 599 

P.2d 368, 36 St.Rep. 1622; State v. Puzio (1979), - Mont. - I 

595 P.2d 1163, 36 St.Rep. 1004; State v. Tiedemann (1978), 

178 Mont. 394, 584 P. 2d 1284; State v. ~ollins (1978), 178 

Mont. 36, 582 P. 2d 1179. 

The factors considered are (1) length of the delay, (2) 

reason for delay, (3) defendant's assertion of the right, 

and (4) prejudice to the defendant from delay. Application 

of this "balancing test" of course must be made on an -- ad hoc 

basis. Barker v. Wingo, supra, 407 U.S. 514, 530. We have 

reviewed the circumstances peculiar to this case and after 

balancing many factors, we reluctantly must order reversal 

and dismissal of this cause. 

The first factor, length of delay, has been termed the 

"triggering mechanism" to speedy trial inquiries. Barker, 

407 U.S. at 530-531. The delay in this case is indeed 

sufficient to trigger further inquiry. 

After a conviction has been reversed and remanded for 

retrial, the speedy trial timeclock begins on the date of 

the remittitur and continues until trial. State v. Sanders 

(1973), 163 Mont. 209, 516 P.2d 372. We ordered remittitur 

of this cause April 10, 1980. The appellant was tried 194 

days later on October 21, 1980. We find the State's total 

inaction for the first five months of the delay to be particularly troublesome. 

In Sanders, we held six months and 22 days was sufficient to trigger further inquiry. 516 P.2d at 375. In 

Freeman, we held 207 days, approximately seven months, met 
this threshold requirement. While we are aware of the 

practical problems in gradually reducing the minimum number 

of days required to support speedy trial inquiry, we are 

equally aware of the fundamental constitutional right involved. The appellant has remained incarcerated since his 

arrest on January 15, 1979. We cannot directly consider the 

period from the initial arrest until remittitur for purposes 

of appellant's claim of denial of speedy trial, however, we 

note in holding that the appellant has met the threshold 

requirement of Barker, that throughout the delay under 

scrutiny the appellant was incarcerated; 154 days at Montana 

State Prison and 40 days in the county jail. 

The appellant has triggered further review of his 

claim. "The length of delay thus shifts the burden to the 

State of explaining the reason for the delay - and showing 

absence - of prejudice - to defendant. " (Citations omitted and 

emphasis added.) Tiedemann, 584 P.2d 1288. 

The State contends the case was justifiably delayed because of (1) its good faith belief that defendant's counselintended to negotiate a plea bargain, and (2) the time 

consumed by the number of motions filed, briefed, argued and 

decided between September 15 and October 21. We are not 

persuaded. The State's argument is, at best, that the 

appellant somehow waived his right to speedy trial. 

First, we cannot conclude from this record that the 

appellant waived his constitutional right to speedy trial. 

Barker, 407 U.S. at 525-526. Second, the State has completely failed to supply a plausible reason for its inaction 

for five months yet argues we should decide the case as we 

did Freeman. In Freeman, we held we could not presume 

prejudice was attributable to the State where the prosecu- 
tion was diligent and numerous time-consuming motions had 

been made. Freeman, 599 P.2d at 371. In our view, this 

case is clearly distinguishable. The State has not been 

diligent; the entire period of delay must be charged to the 

State. Mere allusion to good faith misunderstanding and 

crowded court calendars is not sufficient justification 

where the State has not been diligent and the appellant has 

been unable to post bail from his initial arrest. 

The third test is whether there has been a timely 

assertion of the right by defendant. A motion to dismiss 

for denial of speedy trial made by the defendant prior to 

the commencement of the trial is an "appropriate motion" 

which fulfills this requirement. State v. Steward (1975), 

168 Mont. 385, 390, 543 P.2d 178, 182. The appellant properly 

asserted his right with such a motion four days prior to 

trial. 

The State contends we should consider that the appellant failed to put the State on notice by earlier communicating his desire for a speedy retrial. This is not the 

law. " . . . [I]t is not the duty of defendant to bring 

himself to trial." Larson, 623 P.2d at 958. 

The last inquiry in Barker is whether the defendant has 

been prejudiced. The State contends that unless the appellant was so prejudiced as to deny him a fair trial we must 

deny his claim. We do not agree. 

"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 pretrial 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." Larson, 623 P.2d at 959. 
The United States Supreme Court further explained the 

requirement in Moore v. Arizona (1973), 414 U.S. 25, 26, 94 

". . . Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial: 

"'We regard none of the four factors identified 

above [length of delay, reason for delay, defendant's assertion of his right and prejudice to 

the defendant] as either a necessary or sufficient 

condition to finding of a deprivation of the right 

of speedy trial. Rather, they are related factors 

and must be considered together with such other 

circumstances as may be relevant. . . I 11 

The State contends the appellant was not prejudiced because two important witnesses were also in the State prison. 

The State argues that proximity of these witnesses gave the 

appellant a greater opportunity to assist in the preparation 

of his legal defense than if he were incarcerated in the 

Yellowstone County jail. We can hardly agree that the 

appellant had a better opportunity to prepare his defense in 

prison with the help of two fellow prisoners than he would 

with the aid of his retained counsel in Yellowstone County. 

We hold the appellant has shown sufficient prejudice 

from the record and circumstances of the case. The appellant testified at his suppression hearing of anxiety over 

not knowing whether the State would retry his case. The 

record of extended confinement is clear. 

We find ample evidence in the record to hold the delay 

in this case prejudiced the appellant. 

Having found the deprivation of the appellant's right 

to speedy trial, we must dismiss the case. Strunk v. United 

States (1973), 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed. 2d 56; 

State v. Keller (1976), 170 Mont. 372, 553 P.2d 1013. 
In summary, after considering all the circumstances and 

the factors set forth above, we hold that excessive delay 

between remittitur of the first conviction in this action 

and retrial of the appellant has occurred; that the State 

has failed to adequately explain its total inaction for 

substantially all of the delay; that the appellant timely 

asserted deprivation of his right to speedy trial; that 

sufficient evidence of resultant prejudice to the appellant 

has been shown; that the only proper remedy is dismissal of 

the case. 

For the foregoing reasons, the conviction is reversed 

and dismissed with prejudice. 

We concur: