DA 07-0266 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 2008 MT 37

STATE OF MONTANA, Plaintiff and Appellant,

v. PRESTON A. MADPLUME, Defendant and Appellee.

APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DC-2004-108 Honorable C. B. McNeil, Presiding Judge

COUNSEL OF RECORD: For Appellant: Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant Attorney General, Helena, Montana Mitchell A. Young, Lake County Attorney, Polson, Montana For Appellee: Jim Wheelis, Chief Appellate Defender, David Avery, Assistant Appellate Defender, Helena, Montana

Submitted on Briefs: January 4, 2008 Decided: February 5, 2008

Filed:

__________________________________________ ClerkJustice Patricia O. Cotter deliver ed the Opinion of the Court. ¶1 In October 2004 Preston A. Madplume (M adplume) was charged with the offense of sexual intercourse without consent after DNA evidence re vealed the presence of the accuser’s DNA on Madplume’s finger. An omnibus hearing was scheduled but was continued seventeen times at Madplume’s re quest. During this time Madplume signed a waiver of his right to a speedy trial. In September 2005 Madplume moved to suppress the DNA evidence on the ground that it was obtained w ithout a warrant and therefore resulted from an unlawful search of his person. The District Court granted his motion. The State appealed and in January 2007 we reversed and remanded for further proceedings. Madplume’s omni bus hearing was ultimately held on March 14, 2007. On that date, he filed a motion to dismiss for violation of the right to a speedy trial. The District Court granted the motion without a h earing and the State appeals. We reverse and remand. ISSUE ¶2 The question presented is whether the District Court pr operly granted Madplume’s motion to dismiss for violation of the right to a speedy trial. FACTUAL AND PROCED URAL BACKGROUND ¶3 The factual background of this case was presented in State v. Madplume , 2007 MT 11, 335 Mont. 290, 150 P.3d 956, and is not relevant to the issue before us; therefore, it will not be repeated here. This appeal concerns the procedur al background of Madplume’s case only.

2¶4 It is undisputed that 894 days had el apsed from the time Madplume was charged and the date on which he file d his motion to dismiss. Madp lume argued to the District Court and to this Court on appeal that this passage of time resulted in a violation of his constitutional right to a speedy trial. ¶5 The District Court granted Madplume’s moti on to dismiss. The State appeals. STANDARD OF REVIEW ¶6 A criminal defendant’s claimed violation of the right to a speedy trial presents a question of constitutional law. We review a trial court’s reso lution of such questions for correctness and will not disturb findings underly ing a district court’s speedy trial ruling unless the findings are clearly erroneous. State v. Spang , 2007 MT 54, ¶ 7, 336 Mont. 184, ¶ 7, 153 P.3d 646, ¶ 7 (citation omitted). DISCUSSION ¶7 Issue: Did the District Court properly grant Madplume’s motion to dismiss for violation of the right to a speedy trial? ¶8 Madplume moved the District Court to di smiss the charges against him, asserting the State had violated his right to a speedy trial. The District Court granted his motion finding that he had been prejudiced by the le ngthy delay and that the State had not met its burden of disproving prejudice. The State contends the Dist rict Court’s conclusion is

erroneous. ¶9 We note that this case proceeded through the District Court a nd to this Court on appeal before we issu ed our decision in State v. Ariegwe , 2007 MT 204, 338 Mont. 442, 167 P.3d 815, in which we announced a comp rehensively-revised speedy trial test that

3“more closely tracks the balancing approach envisioned by the [U.S.] Supreme Court in Barker 1 , Doggett 2 , and other post- Barker cases.” Ariegwe , ¶ 106. As a result, the parties argued to the District Court and that court ru led based on analysis of the standards set forth in City of Billings v. Bruce , 1998 MT 186, 290 Mont. 148, 965 P.2d 866, overruled in part by Ariegwe . Thus, the District Court did not have the opportunity to analyze the speedy trial issue under the new Ariegwe framework. ¶10 On appeal, the State filed its opening brief before Ariegwe was issued; however, Ariegwe’s new test was published before Madplu me responded or the State replied. Neither party, however, analy zed the speedy trial issue under the newly-announced test but continued to rely upon a Bruce analysis. Since the timing of Ariegwe’s publication precluded the court and the parties from analyz ing the speedy trial issue under this new framework, and as we recently did in State v. Smith , 2008 MT 7, ¶¶ 23 -24, 341 Mont. 82, ¶¶ 23-24, ___ P.3d ___, ¶¶ 23-24, we deem it appropriate to remand this matter to the District Court without prejudice to a timely appeal thereafter by either party, with instruction that the Di strict Court apply the Ariegwe analysis in resolving the speedy trial issues herein presented. CONCLUSION ¶11 We reverse the District Court’s dismi ssal of Madplume’s case and remand for analysis under Ariegwe

.

1 Barker v. Wingo , 407 U.S. 514, 92 S. Ct. 2182 (1972). 2 Doggett v. United States , 505 U.S. 647, 112 S. Ct. 2686 (1992).

4/S/ PATRICIA COTTER

We Concur: /S/ KARLA M. GRAY /S/ JOHN WARNER /S/ W. WILLIAM LEAPHART /S/ JIM RICE

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