No. 89-353 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

THOMAS LELAND CRANE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Dawson, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Russell D. Yerger; Kurt W. Kroschel & Associates, 

Billings, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

John Paulson and Kathy Seeley, Asst. Attys'. General 

Richard A. Simonton, Dawson County Attorney; Marvin 

Hone, Deputy Co. Atty., Glendive, Montana 

FW Filed: ,, 

Submitted on Briefs: Nov. 2, 1989 

Decided: December 12, 1989 
Justice 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 on April 

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 

Justice Court, an information charging him with 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 the April 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 officer was not available to testify until June 17, 

1988. The State specifically requested that the court set 

the trial date after June 17, 1988 but before July 17, 1988, 

so the six-month statute of limitations would not be 

exceeded. Upon oral order of the District Court on April 27, 

1988, appellant's jury trial was set for June 28, 1988. 
On June 22, 1988, the appellant, through his attorney, 

Mr. Cook, filed a "Motion for Continuance and Waiver of 

Speedy Trial." Mr. Cook moved the court for a continuance of 

the June 28, 1988, trial date because he had another trial 

scheduled for that date. The motion further stated that 

"Defendant herein specifically waives any objection to speedy 

trial." On June 29, 1988, the court set August 4, 1988 as 

appellant's trial date. 

Prior to August 4, 1988, the deputy county attorney and 

Mr. Cook orally agreed that the appellant would 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, for Jerry Cook. 

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 the 
appellant's motion to dismiss on March 1, 1989, and heard and 

denied the appellant's renewed motion to dismiss on March 3, 

1989. On March 3, 1989, the jury found the appellant guilty 

of the offense of 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 trial by 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 in Montana is also secured by Sec. 24, Art. 

11, of the Montana Constitution. State v. Ackley (1982), 201 

Mont. 252, 653 P.2d 851. When considering misdemeanor 

charges, such as the charge aqainst the appellant here, 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 continuance because 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 (six months after the date of the appellant's motion for 

continuance); or September 20, 1988 (45 days after the August 
4, 1988 trial date which had been set as a result of 

appellant's motion) . The respondent State argues that the appellant was not 

denied his right to a speedy trial under 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 shown good cause for the delay. While this Court 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 

does not 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 insert what 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 trial was 

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-ed after a 
delay 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, that period of time from the date of arrest and 

the length of the delay before trial are not interchangeable 

terms. "Length of delay refers only to the time period 

chargeable to the State." State v. Wirtala (Mont. 1988), 752 

P.2d 177, 180, 45 St.Rep. 596, 599. In State v. 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 a waiver of the right 

to be tried within the time fixed by statute or required by 

the constitution. (Citations omitted.)" State v. Robbins 

(1985), 218 Mont. 107, 116, 708 P.2d 227, 233. 

When appellant, through his 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 a waiver 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 from June 22 to August 4 was 43 days. 

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 objection to, a total of 
339 days of the total delay. The remaining time, consisting 

only of 73 days, 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 counsel alleges 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 should be counted against the State and not against his 

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 

sentencing recommendation. However, just before 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 case back 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 same can be 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 into believing 

that in order to benefit the appellant they would wait until 
December to enter a plea, it is not necessary i.n this case tn 

have a written signed aqreement of the parties. 

Affirmed. 

We concur: