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State v. Kipp8/25/1999
recognized the State had the burden to disprove prejudice and acknowledged as much in its order denying Kipp's motion to dismiss where it stated that:
" n this case 389 days have passed. This delay is long enough to trigger further inquiry of the remaining Barker factors and creates a rebuttable presumption of prejudice. The State has the burden of rebutting the presumption by providing a reasonable explanation for the delay and showing that the defendant was not prejudiced." State v. Heffernan (Mont. 1991), 809 P.2d 566.
Kipp's motion was denied, however, based on the District Court's Conclusion that Kipp was responsible for the majority of delay. In that regard, the District Court held:
The court holds that the defendant's right to a speedy trial was not violated because defendant's own actions caused much of the delay and the prejudice alleged to result from that delay.
We conclude that the State violated Kipp's right to a speedy trial. Therefore her conviction is reversed and the charges against her are dismissed.
Based on this result, the other issues raised by Kipp's appeal need not be addressed.
TERRY N. TRIEWEILER
We Concur:
J. A. TURNAGE
KARLA M. GRAY
W. WILLIAM LEAPHART
JIM REGNIER
WM. NELS SWANDAL
District Judge, sitting for Justice William E. Hunt, Sr.
MIKE SALVAGNI
District Judge, sitting for Justice James C. Nelson
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