No. 86-244 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTERRY GRANT, 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Anthony F. Keast, Missoula, Montana 

Christopher Daly, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dorothy McCarter, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorey, Missoula, 

Montana 

Submitted on Briefs: March 12, 1987 

Decided: June 11, 1987 

Filed: 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the opinion of 

the Court. 

Defendant, Terry Grant, appeals a conviction of one 

count of burglary and two counts of theft from the Fourth 

Judicial District, Missoula County, Montana. Defendant 

alleges that his right to a speedy trial was violated and 

therefore the charges against him should be dismissed. 

The decision of the District Court is affirmed. 

The sole issue raised on appeal is whether defendant was 

denied a speedy trial. 

Defendant, Terry Grant, was arrested on September 23, 

1984, after being apprehended while fleeing the scene of a 

burglary of a Missoula jewelry store. The same night, two 

other Missoula jewelry stores were burglarized in a similar 

manner. Items allegedly taken from all three stores were 

found in defendant's possession. On October 23, 1984, an 

information was filed with the District Court charging 

defendant with three counts of burglary. On November 7, 

1984, defendant was arraigned in District Court and entered a 

plea of not guilty to the charges against him. On November 

8, 1984, the State filed an amended information charging 

defendant with one count of burglary and two counts of theft. 

Defendant was released on his own recognizance. Trial was 

set for the court's next jury term in February, 1985. 

An omnibus hearing was scheduled for January 11, 1985, 

at which defendant's presence was required. When defendant 

did not appear at the hearing a bench warrant was issued for 

his arrest. 

Defendant did not appear at the Montana omnibus hearing 

because he was in the Lemhi County, Idaho jail. He had been 

in jail in Idaho since November 18, 1984 on burglary and 
grand theft charges. Defendant pled guilty in Idaho and 

received a five year sentence to be served in that state's 

prison. 

On January 22, 1985, the Missoula County sheriff issued 

a detainer, based on the bench warrant, to the Lemhi County, 

Idaho sheriff's office. On February 19, 1985, the Idaho 

State Prison notified the State of Montana that defendant was 

incarcerated there. 

A second detainer was issued against the defendant in 

Idaho on March 8, 1985. Confirmation that defendant received 

notice of this detainer was received in Missoula on March 11, 

1985. 

On March 29, 1985, the State of Montana moved for a 

continuance. The motion was granted. Defendant alleges that 

neither he nor his counsel received notice of this motion and 

therefore were unable to make an appearance. 

A second omnibus hearing was scheduled for May 1, 1985. 

Various motions were made and a hearing on the motions was 

scheduled for May 23, 1985. On that day neither defendant 

nor his counsel appeared. The matter was continued without 

date. 

On May 30, 1985, the State issued a third detainer to 

the Idaho State Prison requesting temporary custody of 

defendant in order to pursue the charges against him in 

Montana. 

On June 17, 1985, the State moved for a second 

continuance for the trial which was at this time scheduled 

for the July 1985 calendar. This continuance was granted 

over defendant's objection alleging a speedy trial violation, 

on the grounds that defendant was incarcerated in Idaho and 

had not yet exercised his right to a speedy trial in Montana 

pursuant to the Interstate Agreement on Detainers, 5 

46-31-101, MCA. 
On June 19, 1985, the State of Montana received from 

defendant, a request for disposition of the Montana charges 

against him and for the determination of a speedy trial. 

Defendant was delivered to the custody of the State of 

Montana on August 15, 1985. On September 3, the d.ate 

scheduled for final disposition of the charges against 

defendant in Montana, defendant and his counsel requested a 

continuance and waived the right to a jury trial. 

On October 21, 1985, defendant requested another 

continuance, which was denied. A nonjury trial was heard on 

October 22. Defendant made a motion to dismiss for lack of a 

speedy trial. This motion was argued and subsequently 

denied. On November 8, the court issued its findings of 

fact, conclusions of law and order. Defendant was found 

guilty of one count of burglary and two counts of theft. He 

was sentenced to the Montana State Prison for ten years for 

the charge of burglary, ten years for one charge of theft, to 

run concurrently, and ten years for the second charge of 

theft, to run consecutively. He was designated a persistent 

felony offender, nondangerous, and was given credit for time 

served in Idaho. Defendant was returned to the Idaho State 

Prison on or about December 5, 1985. 

The right to a speedy trial in criminal prosecutions is 

secured by the Sixth Amendment of the United States 

Constitution. The same right is expressed in Art. 11, S 24 

of the Montana Constitution. This right has been regarded as 

fundamental. Branden v. 30th Judicial Circuit Court (19731, 

410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443. 

To determine whether defendant's right to a speedy trial 

has been violated, this Court must balance four 

factors: length of delay; the reason for delay; the 

defendant's assertion of his right; and prejudice to the 

defendant. Barker v. Wingo (1972), 407 U.S. 514, 530, 92 
S.Ct. 2182, 33 L.Ed.2d 101, 117; State v. Robbins (Mont. 

1985), 708 P.2d 227, 42 St.Rep. 1440. 

1. Length of delay 

The length of delay is the first and most critical 

factor to be considered in the balancing test. Until there 

has been sufficient delay which is presumptively prejudicial, 

there is no need to consider the other factors. 

In the present case, Grant's arrest on September 23, 

1984, started the clock running. State v. Smith (Mont. 

1983), 670 P.2d 96, 100, 40 St.Rep. 1533, 1537. On October 

22, 1985, 393 days later, Grant was brought to trial. This 

is a presumptively prejudicial delay. Fitzpatrick v. Crist 

(1974), 165 Mont. 382, 528 P.2d 1322 (7 month delay). A 

lengthy delay, by itself, does not necessitate a dismissal of 

charges, but it does trigger our consideration of the other 

factors outlined in Barker, 407 U.S. at 533. 

Once a sufficiently lengthy delay has occurred the 

burden of explaining the reason for such delay and an absence 

of prejudice to defendant shifts to the State. Fitzpatrick, 

528 P.2d at 1326. When the reason for delay is considered, 

the question becomes whether prosecution was pursued with 

rea-sonable diligence. State v. Carden (1977) , 173 Mont. 77, 

566 P.2d 780. Any delay attributable to defendant's own 

actions must be deducted from the total delay. State v. 

Freeman (1979), 183 Mont. 334, 339, 599 P.2d 368, 371. 

Incarceration on other charges does not affect defendant's 

right to a speedy trial. U.S. v. Maura (1978), 436 U.S. 340, 

98 S.Ct. 1834, 56 L.Ed.2d 329. However, in the present case, 

defendant's own actions were responsible for much of the 

delay. To determine whether the 393 day delay violated 

defendant's right to a speedy trial, we must look to the 

reasons for delay. 
2. Reasons for delay 

The primary reason for the delay was the conduct of the 

defendant in Idaho leading to his arrest, conviction and 

imprisonment preventing him from attending the January 11, 

1985 omnibus hearing in Montana and causing the trial, 

scheduled in February, to be continued without date. 

Defendant was arrested on September 23, 1984 and 

arraigned 14 days later on November 7 in Missoula, Montana. 

He was released on his own recognizance. Eleven days later 

on November 18, he was arrested in Idaho and charged with 

burglary and felony theft. The result of these charges was a 

conviction and incarceration for five years in the Idaho 

State Prison. On January 11, 1985, after defendant failed to 

show up for an omnibus hearing, the State of Montana was 

alerted to his incarceration in Idaho. Thereafter, on 

January 22, 1985, a detainer was filed in Idaho pursuant to 

the Interstate Agreement on Detainers, 46-31-101; Art. 

I11 (1) , MCA. 

Montana filed two more detainers on defendant Grant with 

the State of Idaho. On March 8, 1985, Idaho received a 

detainer from Montana and notified defendant that charges 

were still pending against him in Montana. On May 30, the 

State of Montana filed a detainer in Idaho requesting 

temporary custody of defendant pursuant to Art. IV of the 

Interstate Agreement on Detainers. 

The time chargeable to defendant began on January 22, 

1985, when the State of Montana issued the first detainer to 

defendant and the State of Idaho notifying them of charges 

pending against defendant in Montana. That time, as 

chargeable to defendant, ceased to run on June 19, 1985 when 

defendant asserted his right to a speedy trial by requesting 

final disposition of the charges against him in Montana. 

During this period the Interstate Agreement on Detainers was 
applicable. State v. Seadin (1979), 181 Mont. 294, 593 P.2d 

451. Defendant was out of reach for prosecution in Montana 

due to his voluntary commission of crimes in Idaho. The 

State of Montana repeatedly attempted to bring defendant to 

trial for the charges pending against him by filing detainers 

with the State of Idaho. Knowing that charges were pending 

against him in Montana, it was up to defendant to request 

speedy and final disposition of the charges against him. 

Also chargeable to defendant is the delay between 

September 3, when defendant requested a continuance of his 

trial date, and October 22, the date of his trial. This is a 

total of 196 days chargeable to defendant which, when 

deducted from the total 393 days, leaves a period of 197 

days: 121 days between his arrest and the day a detainer was 

first issued; and 76 days between receiving the request for 

speedy trial from defendant and the date of his request for a 

continuance. 

In consideration of the remaining 197 days not 

chargeable to defendant, we hold that the State was diligent 

in its efforts to bring the defendant to trial. Accordingly, 

this time cannot be charged against the State. Freeman, 599 

P.2d at 371. The presumption that defendant did not receive 

a speedy trial which was raised by the 393 day delay between 

defendant's arrest and his trial was satisfactorily overcome. 

3. Defendant's assertion of his rights 

The State of Montana did not receive a request for 

speedy trial from defendant until June 19, 1985. Upon 

receipt of defendant's request, the State of Montana was 

allowed 180 days to bring defendant to trial for the charges 

filed against him in Montana under the Interstate Agreement 

on Detainers, § 46-31-101; Art. III(1). The 180 days began 

to run when defendant's request for speedy trial was received 

by the proper authorities in Montana. Maura, 436 U.S. at 
351. Defendant's trial on October 22, 1985, 125 days after 

his June 19 request, was within the 180 allowable days of his 

demand for a speedy trial. 

It is clear that defendant was given a speedy trial 

after the assertion of his rights under the Interstate 

Agreement on Detainers. 

4. Prejudice to the defendant 

Defendant's own conduct prevented the State from 

bringing him to trial within 180 days. He cannot now 

complain that he was not given a speedy trial. 

The judgment of the District t is affirmed. 

We Concur: 7 

Chief Justice 

Justices