NO. 82-422 INTHE 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, 1983Mr. 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 DistrictCourt of theThirdJudicialDistrict, Powell County, to four additional years in prison, to be served. consecutively. On appeal, defendants claim they

### weredenied therighttoa speedy trial. The defendants escaped from theMontana StatePrison 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 defendantspled "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 defendantsmoved 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 todismiss for lack of a speedy trial. The motion was denied. On September 15, 1982, a stipulation of facts was submitted tothe

### District Court. On that day, the defendants

### werefound guiltyof escape. From the date that the defendants 

### were arrested until their trialdate, 207 days elapsed. A pretrial delay of 207 days is sufficiently long to trigger a speedy trial inquiry and shifttothe statetheburden of explaining thedelay 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 substitutionof judge and change ofvenue, 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.otweigh 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 notunreasonable); Statev. Nelson (1978),178Mont. 280, 583 P.2d 435 (8 month delay, caused by defendant's substitution of judges,and othermotions,wasnotunreasonable). 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