No. 89-353

IN THE SUPREME COURTOF THE STATE OF MONTANA

1989

STATE OF MONTANA, Plaintiffand Respondent, -vs

### - THOMASLELAND CRANE, Defendantand Appellant.

APPEAL FROM: District Court of the SeventhJudicialDistrict, In and for the County of Dawson, TheHonorable Roy Rodeghiero,Judgepresiding.

COUNSELOF RECORD:

ForAppellant:
RussellD. Yerger;KurtW. Kroschel & Associates, Billings,Montana

ForRespondent:

Hon. Marc Racicot,Attorney General, Helena,Montana JohnPaulsonand Kathy Seeley,Asst. Attys'. General RichardA. Simonton, DawsonCounty Attorney; Marvin Hone,DeputyCo. Atty., Glendive,MontanaFW Filed: 

# ,, Submittedon Briefs: Nov. 2, 1989 Decided: December 12, 1989Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from the District Court of the Seventh Judicial District, Dawson County, Montana. The appellant, Thomas Leland Crane, was arrested on January 17, 1988, for violation of S 61-8-401, MCA, driving under the influence of alcohol, third offense, a misdemeanor. On January 19, 1988, the appellant appeared before the Glendive City Judge and pled not guilty to the charge. After numerous delays and continuances attributable to both the appellant and the State, the appellant was tried in District Court on March 3, 1989,found guilty by a jury and sentenced onApril 14, 1989. The appellant now appeals his conviction, his judgment and execution of sentence being stayed pending his appeal to this Court. We affirm. After appellant's arrest and initial appearance in JusticeCourt,an information charginghimwith driving under the influence (DUI),third offense,was filed in the District Court on January 26, 1988. The appellant made his initial appearance with his defense attorney, Jerry D. Cook. On February 10, 1988, following an omnibus hearing before District Court Judge Dale Cox, trial was set for April 5, 1988. On April 4, 1988, Judge Cox entered an order, sua sponte,vacating theApril 

### 4, 1988 date and resetting it for April 20, 1988. On April 13, 1988, the State moved for a continuance of the April 20, 1988 trial date because the arresting officerwas not available to testify until June 17, 1988. The State specifically requested that the court set the trial date after June 17, 1988but before July 17, 1988,

so the six-month statute of limitations would not be exceeded. Upon oral order of the District Court onApril 27, 1988,appellant's jury trialwas set forJune 28, 1988.On June 22, 1988, the appellant, throughhis attorney, Mr. Cook, filed a "Motion for Continuance and Waiver of Speedy Trial." Mr. Cook moved the court fora continuance of the June 28, 1988, trial date because he had another trial scheduled for that date. The motion further stated that "Defendant herein specificallywaives any objection to speedy trial." On June 29, 1988, the court set August 4, 1988 as appellant's trialdate. Prior toAugust 4,1988,the deputy county attorney and Mr. Cook orally agreed that the appellantwould plead guilty to the charge after December 12, 1988. The agreement to allow a delayed guilty plea was designed to benefit the appellant because after December 12, 1988, more than five years would have elapsed since appellant's first DUL conviction. The deputy county attorney and defense counsel believed this would reduce the administrative penalties the appellant faced. The record indicates nothing further happened in the case until January 4, 1989, when the appellant filed a Substitution of Counsel, Consent and Notice substituting attorney,Russell Yerger, forJerryCook. On January 11, 1989, at the State's request,the trial judge set February 3, 1989 as appellant's date for his jury trial. The record indicates through a minute entry made on February 1, 1989, that "Due to severe weather conditions and at the request of defense counsel" the trial was vacated and continued to March 3, 1989. Prior to jury trial,which was held March 3, 1989, the appellant's counsel filed a "Motion for Substitution of District Judge;" "Motion to Dismiss for Lack of Speedy Trial;" and moved for a continuance of the trial date until a decision on his motion to dismiss was entered and filed. Judge Roy E. Rodeghiero assumed jurisdiction on February 23, 1989, heard and denied theappellant'smotion to dismiss on March 1, 1989,and heard and denied the appellant's renewedmotion to dismiss onMarch 3, 1989. OnMarch 3, 1989, the jury found the appellant guilty of the offenseof DUI, a misdemeanor. The sole issue before this Court is whether the District Court erroneously denied the appellant's motion to dismiss for lack of speedy trial. Appellant argues that every person accused of a crime is guaranteed the fundamental right to a speedy trialby the Sixth Amendment to the United States Constitution, which is made applicable to the States by virtue of the Fourteenth Amendment. State v. Chavez (1984),213 Mont. 434, 691 P.2d 1365. This right inMontana is also securedby Sec. 24,Art. 11, of theMontana Constitution. Statev. Ackley (1982),201 Mont. 252, 653 P.2d 851. When considering misdemeanor charges, such as the charge aqainstthe appellanthere, these constitutional requirements are implemented by § 46-13-201(2), MCA, which mandates a six-month statute of limitations in which persons must be brought to trial. It is the appellant's position that under the terms of § 46-13-201(2),MCA, his right to a speedy trial would have expired on July 17, 1988, but for appellant's counsel's June 22, 1988 motion for continuancebecause of conflicting trial date. Appellant argues that the waiver of speedy trial date of June 22, 1988,was not specific in scope or length at the time of the waiver, and was not set forth in the motion for continuance. Appellant's counsel did not indicate that the waiver was nothing hut a waiver of a right to a speedy trial with respect to the day of the conflicting trial date. According to the appellant, his speedy trial rights evaporated on either of the following dates: December 22, 1988 (sixmonths after the date of the appellant'smotion for continuance); or September 20, 1988 (45days after theAugust4, 1988 trial date which had been set as a result of appellant's motion)

# . The respondent State argues that the appellantwas not denied his right to a speedy trialunder B 46-13-201(2), MCA, in that it does not apply in this case. Section 46-13-201(2)

## ,MCA, states: (2) The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed if a defendant whose trial has not been postponed upon his application is not brought to trial within 6 months after entry of plea upon a complaint, information, or indictment charging a misdemeanor.
The above section mandates dismissal of a misdemeanor charge not brought to trial within six months if the defendant has not asked for a postponement,and if the State has not showngood cause for the delay. While thisCourt has not specifically ruled on the applicability of this section when a defendant has asked for a postponement, the language of the statute makes it clear that the six-month limitation doesnot apply in this case. In construing a statute, it is our function as an appellate court to ascertain and declare what in terms or in substance is contained in a statute and not insertwhat has been omitted. Dunphy 

### v. Anaconda (1968), 151 Mont. 76, 438 P.2d 660. In State

### v. Ronningen (1984), 213 Mont. 358, 691 P.2d 1348, this Court stated: "But the statute is clear and the facts are clear. If the defendant requests the postponement the six-month trial deadline does not apply." Ronningen, 691 P.2d at 1350. Here the appellant's trialwas postponed upon his own application of June 22, 1988,before the six-month time limit had expired. We find no statute which allows the six-month period to be extend-edafter adelay has been caused by the appellant. Thus,we hold that § 46-13-201(2), MCA, has no application in the instant case. F7e find the length of the delay is what triggers a speedy trial inquiry. Here there were 410 days between the appellant's arrest and his jury trial. However, in determining whether the appellant was denied his right to a speedy trial, thatperiod of time from the date of arrestand the length of the delay before trial are not interchangeable terms. "Length of delay refers only to the time period chargeable to the State." Statev. Wirtala (Mont. 1988), 752 P.2d 177, 180,45 St.Rep. 596, 599. In Statev. Grant (Mont. 1987), 738 P.2d 106, 109, 44 St.Rep. 994, 997, this Court noted that any delay in bringing a defendant to trial which is attributable to defendant's own actions must be deducted from the total delay for purposes of determining whether speedy trial rights were violated. Also, 

### "Idlelays in bringing the defendant to trial caused or consented to by defendant are copsidered to constitute awaiver of the right to be tried within the time fixed by statute or required by the constitution. (Citations omitted.)" State v. Robbins

(1985),218Mont. 107, 116, 708P.2d 227, 233. When appellant, throughhis counsel,moved on June 22, 1988 for a continuance of his trial date, 164 days had elapsed from the date of his arraignment. He coupled his motion for continuance with awaiver of any objection on the grounds of speedy trial. The rescheduled trial date of August 4, 1988 took the case beyond the six-month period, which was solely the responsibility of the appellant. The period fromJune 22 toAugust 4was 43days. The further postponement of the trial date was 130 days, from August 4, 1988 to December 12, 1988. This delay also was caused or consented to by the appellant. He is therefore responsible for,or waived objectionto,a total of339 days of the total delay. The remaining time, consisting only of 73days, is attributable to the State. While the appellant argues that the 130-day delay resulted from a continuing plea bargaining process and is attributable to the State, the evidence is uncontroverted that in order to benefit his client, appellant's attorney consented to delaying the trial until after December 12, 1988. We note that shortly after the time set in December, 1988, for the entrance of plea, the appellant obtained new counsel. On appeal,new counselalleges that inasmuch as the agreement to delay was for his client's benefit, this delay

was not a written order nor signed by either the appellant, his counsel or the deputy county attorney, and therefore the delay shouldbe counted against the State and not againsthis client. We disagree. In State v. Dinndorf (1983), 220 Mont. 308, 658 P.2d 372, a case involving the withdrawal of a guilty plea, the county attorney agreed with the defendant not to make a sentencingrecommendation. However, justbefore the hearing, the county attorney recommended at the sentence hearing a ten-year sentence. The district court denied the withdrawal stating there was nothing on record to support the conversations between the defense attorney and the county attorney. In that case this Court remanded the caseback for resentencing noting the district court erred in not considering other factors including an oral agreement or a promise. This Court held that the district court improperly denied the motion to withdraw and remanded the case for resentencing. The samecanbe said in this case. The change of defense counsel after one attorney had represented the appellant for nearly an entire year and had in effect lulled the county attorney's office intobelieving that in order to benefit the appellant they would wait untilDecember toenter a plea, it isnot necessary i.n this case tn have awritten signed aqreement of theparties. Affirmed.

We concur: