State v. Crane12/12/1989
pellant's arrest and his jury trial. However, in determining whether the appellant was denied his right to a speedy trial, that period of time from the date of arrest and the length of the delay before trial are not interchangeable terms. "Length of delay refers only to the time period chargeable to the State." State v. Wirtala (Mont. 1988), [231 Mont. 264,] 752 P.2d 177, 180, 45 St.Rep. 596, 599. In State v. Grant (1987), 227 Mont. 181, 738 P.2d 106, 109, 44 St.Rep. 994, 997, this Court noted that any delay in bringing a defendant to trial which is attributable to defendant's own actions must be deducted from the total delay for purposes of determining whether speedy trial rights were violated. Also, " elays in bringing the defendant to trial caused or consented to by defendant are considered to constitute a waiver of the right to be tried within the time fixed by statute or required by the constitution (Citations omitted.)" State v. Robbins (1985), 218 Mont. 107, 116, 708 P.2d 227, 233
hen appellant, through his counsel, moved on June 22, 1988 for a continuance of his trial date, 164 days had elapsed from the date of his arraignment. He coupled his motion for continuance with a waiver of any objection on the grounds of speedy trial The rescheduled trial date of August 4, 1988 took the case beyond the six-month period, which was solely the responsibility of the appellant. The period from June 22 to August 4 was 43 days
The further postponement of the trial date was 130 days, from August 4, 1988 to December 12, 1988. This delay also was caused or consented to by the appellant. He is therefore responsible for, or waived objection to, a total of 339 days of the total delay. The remaining time, consisting only of 73 days, is attributable to the State
While the appellant argues that the 130-day delay resulted from a continuing plea bargaining process and is attributable to the State, the evidence is uncontroverted that in order to benefit his client, appellant's attorney consented to delaying the trial until after December 12, 1988. We note that shortly after the time set in December, 1988, for the entrance of plea, the appellant obtained new counsel. On appeal, new counsel alleges that inasmuch as the agreement to delay was for his client's benefit, this delay was not a written order nor signed by either the appellant, his counsel or the deputy county attorney, and therefore the delay should be counted against the State and not against his client. We disagree
In State v. Dinndorf (1983), 202 Mont. 308, 658 P.2d 372, a case involving the withdrawal of a guilty plea, the county attorney agreed with the defendant not to make a sentencing recommendation. However, just before the hearing, the county attorney recommended at the sentence hearing a ten-year sentence The district court denied the withdrawal stating there was nothing on record to support the conversations between the defense attorney and the county attorney In that case this Court remanded the case back for resentencing noting the district court erred in not considering other factors including an oral agreement or a promise. This Court held that the district court improperly denied the motion to withdraw and remanded the case for resentencing. The same can be said in this case
The change of defense counsel occurred after appellant had been represented by previous counsel for nearly one entire year During that time period the county attorney's office was, in effect, lulled into believing an agreement existed to wait until December to enter a plea. Thus, as mentioned above, it is not necessary in this case to have a written, signed agreement of the parties
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