97-264

 No. 97-264

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1997

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v.

VALENTINE DEAVILA, JR., 

 Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

 In and for the County of Big Horn, 

 Honorable Maurice R. Colberg, Jr., Judge Presiding.

COUNSEL OF RECORD:

 For Appellant:

 James L. Vogel, Hardin, Montana

 For Respondent:

 Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan,

 Assistant Attorney General, Helena

 Christine A. Cooke, County Attorney; Curtis Bevolden, Deputy County

 Attorney, Hardin, Montana 

 Submitted on Briefs: November 13, 1997 

 Decided: December 9, 1997

Filed:

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 __________________________________________

 Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

 Valentine Deavila, Jr., appeals from the order of the Thirteenth Judicial 

District

Court, Big Horn County, denying his motion to dismiss for lack of speedy trial. We

affirm.

 Deavila raises the following issue on appeal:

 Did the District Court err when it denied Deavila's motion to dismiss for lack 

of

speedy trial?

BACKGROUND

 On December 7, 1995, Deavila was arrested and subsequently charged by

information filed on December 12, 1995, with criminal endangerment and solicitation 

to

commit robbery. After being incarcerated for thirteen days, Deavila was released on 

a

property bond. The District Court initially set trial for March 26, 1996, but due 

to other

scheduled cases, trial did not occur that day and was reset for June 17, 1996. 

Again,

because of a crowded court docket, the June 17 trial was postponed. The court next 

set

trial for October 15, 1996. 

 On September 20, 1996, Deavila moved to dismiss the charges for lack of speedy

trial. He filed an affidavit in support of his motion on October 10, 1996. 

Following a

hearing in which Deavila and his wife Ronette testified, the District Court issued 

oral

findings and conclusions denying Deavila's motion to dismiss. 

 On October 15, 1996, Deavila entered into a plea bargain with the State wherein

he agreed to plead guilty to criminal endangerment while reserving his right to 

appeal the

denial of his motion to dismiss. In return, the State dismissed the solicitation 

charge. 

The District Court accepted the plea bargain and sentenced Deavila to five years, 

with

all time suspended.

DISCUSSION 

 Did the District Court err when it denied Deavila's motion to dismiss for lack 

of

speedy trial?

 A speedy trial claim is a question of constitutional law, and we review 

questions

of law de novo to determine whether the court's interpretation of the law is 

correct. State

v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378. 

 The Sixth Amendment to the United States Constitution and Article II, Section 

24,

of the Montana Constitution guarantee a criminal defendant the right to a speedy 

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trial. 

To determine whether a defendant's right to a speedy trial has been violated, this 

Court

has adopted the four-part test set forth in Barker v. Wingo (1972), 407 U.S. 514, 

530,

92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. See State ex rel. Briceno v. Dist. Ct. of

13th Jud. Dist. (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64.

 The Barker test centers on four factors: the length of the delay, the reason 

for the

delay, the defendant's assertion of his right, and prejudice to the defense. State 

v. Collier

(1996), 277 Mont. 46, 54, 919 P.2d 376, 381-82. All four factors are weighed by

considering the facts and circumstances of each case; no one factor is 

determinative. 

Collier, 919 P.2d at 382.

 A defendant's right to a speedy trial attaches either at the time the defendant 

is

arrested, at the time of the filing of the complaint or information, or at the time 

of

indictment. State v. Larson (1981), 191 Mont. 257, 261-62, 623 P.2d 954, 957-58. A

delay of over 200 days is presumptively prejudicial and will usually trigger further

analysis of the remaining speedy trial factors. Collier, 919 P.2d at 382. If a 

delay is

presumptively prejudicial, the burden shifts to the State to provide a reasonable

explanation for the delay and to show that the defendant was not prejudiced by the 

delay. 

Collier, 919 P.2d at 382. In the instant case, the 313-day delay between Deavila's

December 7, 1995, arrest and scheduled October 15, 1996, trial date is sufficient, 

as the

State concedes, to require consideration of the remaining Barker factors.

 The second factor, reason for the delay, requires this Court to allocate 

portions of

the overall delay to the party responsible for causing it. Collier, 919 P.2d at 

382. Here,

the District Court attributed the delay to the State as institutional due to 

calendaring

problems of the court. Institutional delay is most often caused by crowded court 

dockets

and the corresponding difficulties in setting trial dates. Small, 926 P.2d at 1379. 

Although institutional delay is charged against the State, it weighs less heavily 

than

intentional delay. State v. Williams-Rusch (1996), 279 Mont. 437, 450, 928 P.2d 169,

177. 

 In this case, while the entire delay is chargeable to the State, the State has 

provided

a reasonable explanation for the delay by establishing that it was institutional, not

intentional. See State v. Tweedy (1996), 277 Mont. 313, 321, 922 P.2d 1134, 1138. 

We conclude the reason for the delay does not weigh heavily against the State.

 The third Barker factor requires a defendant to timely assert his right to a 

speedy

trial. State v. Matthews (1995), 271 Mont. 24, 30, 894 P.2d 285, 288. If a 

defendant

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moves to dismiss before trial, the defendant has fulfilled the requirement of 

asserting his

constitutional right to a speedy trial. Tweedy, 922 P.2d at 1139. 

 Deavila moved to dismiss on September 20, 1996, twenty-five days before the

scheduled trial. His motion was timely filed. However, a defendant's technical

compliance with the assertion of his speedy trial right does not end the discussion 

of the

third Barker factor. The Barker test requires a balancing of the speedy trial 

factors in

light of the surrounding facts and circumstances. Williams-Rusch, 928 P.2d at 176.

 Deavila could have objected shortly after June 17, 1996, when his trial was

rescheduled for a second time. By then, speedy trial implications would have arisen

because nearly 200 days had elapsed since Deavila's arrest on December 7, 1995. This

factor is not determinative, however, because Deavila's motion was technically 

timely,

and it is necessary to complete the balancing process by considering the final Barker

factor. 

 The fourth Barker factor, prejudice to the defendant, is analyzed by assessing 

three

interests which the speedy trial right was designed to protect: preventing oppressive

pretrial incarceration; minimizing the defendant's anxiety and concern; and avoiding

impairment of the defense. The final of these factors is the most critical. 

Matthews, 894

P.2d at 288. Except for thirteen days after his arrest, Deavila was released on 

bond. We

conclude that Deavila was not subjected to oppressive or prejudicial pretrial 

incarceration.

 Deavila claims prejudice because he lost his car which was being held by the Big

Horn County Sheriffþs Office. He also claims prejudice because the Montana 

Department

of Family Services (DFS) denied him increased visitation of his two minor children 

and

instituted proceedings to terminate his parental rights. Deavila argues he was 

denied

employment because of the pending charges. Finally, he asserts that he suffered

substantial stress. 

 The evidence presented before the District Court does not support Deavila's

claims. According to Ronette, the Sheriff's Office notified her that she could pick 

up

Deavila's car. Nobody claimed the vehicle, and it was sold. Deavila's car was not 

lost

due to delay. DFS removed the Deavilas' children from their custody in August 1995,

four months before the State charged Deavila with criminal endangerment and

solicitation. The DFS actions occurred for reasons unrelated to the charges in 

this case. 

Likewise, Deavila has made no claim of lost employment opportunities between July 

1996

and his scheduled trial date. We are unpersuaded that trial delay resulted in a 

loss of

Deavila's employment opportunities. 

 We have recognized that a certain amount of anxiety and concern is inherent in

being charged with a criminal offense. State v. Weeks (1995), 270 Mont. 63, 73, 891

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P.2d 477, 483. We have also indicated that the anxiety and concern to be considered

under the Barker test is that which was "aggravated as a result of the delay." 

WilliamsRusch, 928 P.2d at 178. "[S]ince it is nearly impossible for the State to prove that

anxiety and concern do not exist, the State's burden to show a lack of anxiety 

becomes

considerably lighter in the absence of more than marginal evidence of anxiety." 

Williams-Rusch, 928 P.2d at 178. The evidence does not support Deavila's claims that

he suffered excessive anxiety and concern as the result of pretrial delay. 

 Finally, we consider the most critical of the prejudice-related interests the 

speedy

trial right was designed to protect: whether Deavila's defense was impaired by the 

delay. 

See Matthews, 894 P.2d at 288. Once the delay has been determined to be 

presumptively

prejudicial, the State has the burden of rebutting the presumption of prejudice. 

However,

contrary to Deavila's argument that the State must present evidence to rebut the

presumption of prejudice, this does not mean "the State has the burden of coming 

forward

first." State v. Keating (Mont. Nov. 25, 1997), Cause No. 97-065. "[A] defendant 

must

ordinarily come forward with some evidence that the defense was impaired--that is,

prejudiced--as a result of the delay." Keating, Slip Op. at 13. Therefore, we 

consider

the evidence Deavila presented in support of his claim that his defense was impaired 

by

the pretrial delay.

 Deavila claims the delay prevented him from finding several witnesses who could

have testified on his behalf. Deavila's counsel admitted he did not attempt to 

subpoena

or interview the witnesses before the previously scheduled March and June trials. 

Absent

such an attempt, we cannot agree that the additional delay between June and October

resulted in an impaired defense. Based on the evidence presented by Deavila, we

conclude that Deavila's defense was not impaired by the delay.

 Although the length of the delay and the reason for the delay weigh against the

State, Deavila's delay in asserting his right demonstrates his lack of an actual 

interest in

moving his case to trial. Deavila did not establish oppressive pretrial 

incarceration or

excessive anxiety and concern resulting from the delay. Nor did he demonstrate 

actual

impairment to his defense.

 After considering the four Barker factors, we conclude that Deavila's right to a

speedy trial has not been violated. We hold that the District Court did not err in 

denying

Deavila's motion to dismiss for lack of a speedy trial.

 Affirmed. 

 /S/ J. A. TURNAGE

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We concur:

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

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