NO. 82-422 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

vs. 

JAMES PATRICK KELLY, 

ANTHEL L. BROWN, 

Defendants and Appellants. 

Appeal from: District Court of the Third Judicial District, 

In and For the County of Powell 

Honorable Mark P. Sullivan, Judge presiding. 

Counsel of Record: 

For Appellants: 

C. F. Mackay, Anaconda, Montana 

For Respondent: 

Hononable Mike Greely, Attorney General, Helena, Montana 

Ted Mizner, County Attorney, Deer Lodge, Montana 

Submitted on briefs: February 10, 1983 

Decided: March 17, 1983 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Defendants were convicted in a nonjury trial of escape 

from the Montana State Prison. They were sentenced by the 

District Court of the Third Judicial District, Powell County, 

to four additional years in prison, to be served. 

consecutively. On appeal, defendants claim they were denied 

the right to a speedy trial. 

The defendants escaped from the Montana State Prison on 

February 15, 1-982, and were apprehended on February 20, 1982. 

On March 11, 1982, the Powell County Attorney filed an 

information charging the defendants with escape, and the 

defendants pled "not guilty" on March 18, 1982. On that same 

day, the defendants moved for substitution of Judge Boyd. 

Judge Sullivan assumed jurisdiction on April 5, 1982. On 

April 30, 1982, the defendants moved for a change of venue. 

A hearing was held, and the motion was denied on July 29, 

1982. On August 16, 1982, Judge Sullivan set a trial date 

for September 15, 1982. On September 13, 1982, the 

defendants moved to dismiss for lack of a speedy trial. The 

motion was denied. On September 15, 1982, a stipulation of 

facts was submitted to the District Court. On that day, the 

defendants were found guilty of escape. 

From the date that the defendants were arrested until 

their trial date, 207 days elapsed. A pretrial delay of 207 

days is sufficiently long to trigger a speedy trial inquiry 

and shift to the state the burden of explaining the delay and 

showing absences of prejudice. State v. Freeman (1-979), 183 

Mont. 334, 599 P.2d 368. 
In this instance, the State explained that a good 

portion of the delay was attributable to the defendants. By 

making motions for substitution of judge and change of venue, 

the defendants caused a delay of 108 day^. In such a case, 

although the defendants were merely asserting their 

procedural rights, the delay caused by the defendants does 

n.ot weigh against the State. Freeman, 599 P.2d at 371. 

If the delay caused by the defendants is deducted from 

the total delay of 207 days, only 99 days remain that could 

be attributable to the State. This is clearly within the 

permissible limits established by this Court. Cf. State v. 

Shurtliff (1980) , Mont . , 609 P.2d 303, 37 St.Rep. 

713 (382 day delay, caused primarily by the defendant, was 

not unreasonable); State v. Nelson (1978), 178 Mont. 280, 583 

P.2d 435 (8 month delay, caused by defendant's substitution 

of judges, and other motions, was not unreasonable). 

Since no evidence was presented to show that the 

defendants were prejudiced by the delay, and the delay 

attributed to the State was reasonable, the judgment of the 

District Court is affirmed. 

We Concur: 

~*&-J~*~& 

Chief Justice