### 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, Judgepresiding. 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

## 20 

## 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. Statev. Fife (1980), 

### - Mont. I 

### - 608 P.2d 1069, 37 St.Rep. 600. The appellantwas accused of the December 14, 1978, robbery of Mr. and Mrs. 

### Curtis Workman. The facts are 

### set forth in the firstopinion and 

### willnot be restated. Wereversed the conviction, holding the DistrictCourt had abused 

### itsdiscretionby 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 DistrictCourt granted an order authorizing the return of the defendant from the Montana StatePrison, to the Yell-owstone County jail. On October 8, 1980, the appellantmade motions to suppress evidence seized from appellant's truck and the apartment the appellant shared with two other persons. The appellant alsomoved to dismiss the case on the grounds the appellanthad been denied bail following reversal of his firstconviction. Section 46-9-104, MCA. Bail had been originally setinJanuary 1979 at$20,000. Following a hearing on the motion to setbail October 9, the courtreduced 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 trialwas setfor October 21, however, before trial, on October 17, the appellantmade a secondmotion to dismiss contending deprivation of hisright 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 appellantguiltyof 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 trialmotions earlier filed. A brief hearing was held November 25; both motions 

### weredenied. On November 26, the appellantwas sentenced to 20 years and from thatjudgment, the defendant appeals. Appellant raises the following issues: 

### I-. Whether the 

### District Court erred by denying appellant'smotion todismiss for failure to grant a speedy trial. 2. Whether comment by 

### a witness revealing the first trialwas 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 firstissue determinative and consequently need not address the additional issues raised. The right of any defendant to a speedy trial 

### isguaranteed 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 inBarker 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; Statev. Bretz (1979), Mont. 605 P.2d 974, 36 St.Rep. 1037; Statev. Harvey (1979), Mont. 603 P.2d 661, 36 St.Rep. 2035; Statev. Freeman (1979), 

## - Mont. 

## , 599 Mont. P.2d 368, 36 St.Rep. 1622; Statev. Puzio (1979), 

## - I 

## - 595 P.2d 1163, 36 St.Rep. 1004; Statev. Tiedemann (1978), 178Mont. 394, 584 P.2d 1284; Statev. ~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 reluctantlymust order reversal and dismissal of this cause. The firstfactor, length of delay, has been termed the "triggeringmechanism" to speedy trial inquiries. Barker, 407 U.S. at530-531. The delay inthis 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. Statev. Sanders (1973), 163Mont. 209, 516 P.2d 372. We

### ordered remittitur of this causeApril 10, 1980. The appellant

### was tried 194 days later on October 21, 1980. We 

### find the State's total inaction for the firstfivemonths of the delay tobe particularly troublesome. In Sanders, we 

### held sixmonths and 22 days was sufficient totrigger further inquiry. 516 P.2d at375. In Freeman, 

### we held 207 days, approximately sevenmonths, 

### metthis threshold requirement. While 

### we are aware of the practical problems ingradually reducing the minimum number of days required to support speedy trial inquiry, 

### we are equally aware of the fundamental constitutionalright 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 inholding that the appellant has 

### metthe threshold requirement of Barker, that throughout the delay under scrutiny the appellant was incarcerated; 154 days atMontana StatePrison and 40 days in the county jail. The appellanthas 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.

### " (Citationsomitted and emphasis added.) Tiedemann, 584 P.2d 1288. The State contends the case was justifiably delayed because of (1)

### its good faithbelief 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 15and October 21. We arenot persuaded. The State's argument 

### is, atbest, 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. at525-526. Second, the Statehas completely failed to supply a plausible reason for 

### its inaction for fivemonths yet argues we should decide the case as

### we didFreeman. InFreeman, 

### we held 

### we could notpresume prejudice was attributable to the Statewhere the prosecu-tionwas diligent and numerous time-consuming motions had been made. Freeman, 599 P.2d at371. In our view, this

case 

### is clearly distinguishable. The State has not been diligent; the entireperiod of delaymust be charged to the State. Mere allusion to good faithmisunderstanding and crowded courtcalendars 

### isnot sufficient justification where the Statehas not been diligent and the appellant has been unable topost bail from his initial arrest. The third 

### test iswhether there has been a timely assertion of the rightby defendant. A motion to dismiss for denial of speedy trialmade 

### by the defendant prior to the commencement of the trial 

### is an "appropriatemotion" which fulfills thisrequirement. Statev. Steward (1975), 168Mont. 385, 390, 543 P.2d 178, 182. The appellant properly asserted his rightwith such a motion four days prior to trial. The State contends we should consider that the appellantfailed toput 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 at958. The lastinquiry inBarker 

### iswhether the defendant has been prejudiced. The State contends that unless the appellantwas soprejudiced as to deny him a fair 

### trial we must deny his 

### claim. Wedo not agree. "Prejudiceina speedy trial context 

### is to be assessed in lightof the interests of defendants which the speedy trial right

### was designed toprotect. In this regard, defendants' interests have been identified as: '(i) to prevent oppressive pretrial incarceration; (ii) tominimize anxiety and concern of the accused; and (iii) to 

### limitthe possibility that the defense 

### willbe impaired.' Barker v. Wingo, 407 U.S. at532." Larson, 623 P.2d at959.The United States Supreme Court further explained the requirement inMoore v. Arizona (1973), 

### 414 U.S. 25, 26, 94 

# ".

. . Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary toprove a denial of the constitutional right 

### to a speedy trial: "'We regard none of the four factors identified above [lengthof 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 arerelated factors and must be considered together with such other circumstances asmay be relevant. 

# .

# .I 11 The State contends the appellant was not prejudiced because two important witnesses 

### were also in the Stateprison. The State argues thatproximity 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 toprepare his defense in prison with the help of two fellow prisoners than he would with the aid of his retained counsel inYellowstone County. Wehold the appellant has shown sufficientprejudice from the record and circumstances of the case. The appellant testified athis suppression hearing of anxiety over not knowing whether the Statewould retry his case. The record of extended confinement 

### isclear. We find ample evidence inthe 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; Statev. Keller (1976), 170 Mont. 372, 553 P.2d 1013.In summary, after considering allthe circumstances and the factors setforth above, we hold that excessive delay between remittitur of the firstconviction in this action and retrial of the appellant has occurred; that the State has failed toadequately explain 

### its total inaction for substantially allof the delay; that the appellant timely asserted deprivation of his right to speedy trial; that sufficient evidence of resultantprejudice to the appellant has been shown; that the only proper remedy 

### isdismissal of the case. For the foregoing reasons, the conviction 

### is reversed and dismissed with prejudice.

We concur: