No. 94-250

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

-vDALE MANTZ,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Galiatin,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John M. Kauffman, Gallatin County Public Defender,

Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Jennifer

Anders, Assistant Attorney General; Michael

Salvagni, Gallatin County Attorney, Bozeman,

Montana; Susan Wordal, Bozeman City Prosecutor,

Bozeman, Montana

Filed:

Submitted on Briefs: October 28, 1994

Decided: December 23, 1994
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from the Eighteenth Judicial District

Court's denial of a motion to dismiss the charges against Mantz

because of a lack of speedy trial. We affirm.

The only issue on appeal is did the District Court err when it

denied appellant's motion to dismiss the charges filed against him

for lack of a speedy trial?

In July of 1992, Dale Mantz (Mantz) was charged by complaint

in Gallatin County City Court with one count of misdemeanor assault

pursuant to 5 45-5-201, MC??.. The charge springs from an incident

in which Mantz, a light bulb vendor, attacked the manager of JB's

Big Boy restaurant in Bozeman, Montana. A jury trial was held on

January 20, 1993 at which Mantz was found guilty of misdemeanor

assault.

Mantz appealed his action to the District Court on January 22,

1993 seeking a new trial. On December 7, 1993, prior to the

District Court trial, Mantz filed a motion to dismiss for lack of

a speedy trial. The court denied the motion and heard the matter

on December 13, 1993. After a bench trial, the court found him

guilty of misdemeanor assault.

On April 8, 1994, the court sentenced Mantz to three months in

the Gallatin County Detention Center with all but 48 hours

suspended, and ordered him to pay a fine and court costs as a

condition of his suspended sentence. On April 18, 1994, Mantz

filed a pro se appeal to this Court. He also filed a Motion for

Reduced Sentence which was denied by the District Court on April

28, 1994.
Did the District Court err when it denied appellant's motion

to dismiss the charges filed against him for lack of a speedy

trial?

Manta argues that § 46-13-401(2), MCA, states that a defendant

cannot be brought to trial after six months on a misdemeanor

charge. He argues that he waited almost a year for his trial and

the court should have dismissed his case for lack of a speedy

trial. Mantz also contends that the court cannot deviate from the

statutorily required six month limit because to do so would violate

the separation of powers between the judicial and the legislative

or executive branches. The State argues that the six-month rule

does not govern speedy trial issues in cases which are appealed

from justice court to district court.

The District Court concluded that defendant had caused bodily

injury to the manager by assaulting him and sentenced him to three

months in the Gallatin County Detention Center, with all but 48

hours suspended and ordered him to pay costs and fines.

Because the basis of the motion to dismiss is based upon a

legal interpretation made by the District Court, we will review the

court's legal conclusions as to whether the court was correct in

its interpretation of the law. Doting v. Trunk (1993), 259 Mont.

343, 856 P.2d 536. The statute at issue is § 4613-401(2), MCA:

(2) After the entry of a plea upon a misdemeanor charge,

the court, unless good cause to the contrary is shown,

shall order the prosecution to be dismissed, with

prejudice, if a defendant whose trial has not been

postponed upon the defendant's motion is not brought to

trial within 6 months.

Whi.le Mantz argues that this statute required the District Court in

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this matter to grant his motion to dismiss because it took almost

a year to bring the case to trial at the District Court, we have

already interpreted this statute as inapplicable to those

situations in which the case comes from justice court to a trial de

nova in district court.

In State v. Sunford (19901, 244 Mont. 411, 796 P.Zd 1084, we

stated:

The six month rule contained in § 46-13-201(2), MCA

(1989) [now renumbered as § 46-13-401(Z), MCA (1991)l

does not apply in circumstances where the defendant is

tried in justice court and judgment is appealed for trial

de nova in district court. . . . A trial de nova is a

'new trial,' one which does not strictly speaking, arise

out of entry of plea upon a complaint but arises out of

an appeal. . . Once an action is appealed from justice

to district court, it is treated as if it were a new

trial. Questions regarding speedy trial in cases

concerning new trials are analyzed under the

constitutionai standards of Barker v. Wingo (19723, 407

U.S. 514, 92 s.ct. 2182, 33 L.Ed.2d 101.

Sunford, 244 Mont. at 415-416, 796 P.2d at 1086-1087.

The Barker v. Winqo test involves: (1) the length of the

delay; (2) the reason for the delay; (3) the assertion of the right

to speedy trial by the defendant; and (4) the prejudice to the

defense. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at

117. The record contains a transcript of the proceedings held by

the court, just prior to the trial, in which the court heard

arguments from both counsel concerning the above elements and their

bearing on the case

The court specifically determined that the State had not

intended by its actions to delay the trial. The record shows that

the State actually sought a speedy resolution of the trial. The

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trial took 320 days from appeal to trial because the court itself

had scheduling difficulties.

Further, the court determined that the Barker criteria were

met and Mantz had objected in timely fashion on December 7, 1993.

The trial was scheduled for December 13, 1993.

The court determined that its decision to dismiss or not

dismiss hinged on whether Mantz had been prejudiced by this time

and whether his constitutional rights had been violated. Mantz

argued that he lost business because of the incident. Mantz also

argued that he has high blood pressure and that the anticipation of

the proceedings caused him high anxiety and, hence, medical

problems.

Here, the court considered these arguments and determined that

Mantz lost business because of the incident itself, not the length

of the delay for trial. Also, the court determined that Manta had

provided no medical evidence that the length of delay had caused

him any medical problems. Therefore, the court did not dismiss the

case because it determined that according to the Barker criteria,

no lack of a speedy trial occurred here.

We conclude that the District Court correctly considered the

Barker v. Winqo elements because this was an appeal from a justice

court which resulted in a trial de nova in district court. The

six-month rule from § 46-13-401(2), MCA (1991), applies to the

initial trial in justice court.

We hold that the District Court did not err when it denied

appellant's motion to dismiss the charges filed against him for

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lack of a speedy trial.

Affirmed.

I

/

Justices

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Justice Terry N. Trieweiler specially concurring.

I concur with the result of the majority opinion. I do not

agree with the legal reasoning given for the majority opinion.

Section 46-13-401(Z), MCA, requires that people charged with

misdemeanors be brought to trial within six months. It does not

make a distinction between pretrial delay in justice court and

pretrial delay in district court. That fictional distinction was

created by this Court in State y. Sunford (1990), 244 Mont. 411, 796

P.2d 1084, by sheer judicial legislation. Therefore, I decline to

follow that decision.

However, I conclude that the result must necessarily be the

same as that arrived at by the majority. Section 46-20-104(2),

MCA, prohibits this Court from reviewing a district court's error

unless there was a timely and appropriate objection in the district

court. In this case, the defendant did not raise the applicability

of § 46-13-401(2), MCA, in the District Court. Therefore, he

waived the right to raise that argument on appeal.

For these reasons, I specially concur with the result of the

majority opinion.

I

Justice William E. Hunt, Sr., joins in the foregoing concurring

opinion.

Justice

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