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State v. Ellenburg8/24/2000
APPEAL FROM: District Court of the Missoula Judicial District, In and for the County of Missoula, The Honorable John W. Larson, Judge presiding.
Submitted on Briefs: April 27, 2000
1 By Information filed on October 14, 1997, in the District Court for the Fourth Judicial District in Missoula County, the Defendant, Michael Ellenburg, was charged with the following offenses: three counts of common scheme theft, a felony, in violation of § 45-6-301(1)(a) and (b)(8), MCA; forgery, a felony, in violation of § 45-6-325(1)(a), MCA; and two counts of elder abuse, a misdemeanor, in violation of §§ 52-3-803(3)(8) and -825(2), MCA. Ellenburg filed motions to dismiss based on denial of speedy trial and Brady violations. The District Court denied his motions. Pursuant to a plea agreement, Ellenburg pled guilty to two counts of theft and forgery, and the State dismissed the remaining charges. Ellenburg now appeals the District Court's denial of his motions to dismiss. We affirm the judgment of the District Court.
2 The following issues are presented on appeal:
3 1. Did the State violate Ellenburg's right to a speedy trial?
4 2. Did the District Court err when it denied Ellenburg's motion to dismiss based on Brady violations?
FACTUAL BACKGROUND
5 In the fall of 1996, the Defendant, Michael Ellenburg, a licensed insurance agent, was incarcerated in the Montana State Prison for driving a vehicle while under the influence of alcohol. In December 1996, Ellenburg was released to the Intensive Supervision Program (ISP) in Missoula, under the supervision of ISP Officer Steve Miller. A condition of Ellenburg's release to the ISP program was that "upon reasonable cause, you shall . . . submit to a search of your person, vehicle or residence by an Intensive Supervision Officer or designee, at any time without a warrant."
6 In April 1997, Miller was contacted by Leon Belville of the Montana State Auditor's Office and was informed that the auditor's office believed Ellenburg was involved in a financial crime against an elderly person and the auditor's office was conducting an investigation.
7 In June 1997, Miller became aware that Ellenburg had petitioned the District Court to authorize community service in lieu of the $5655 that he was required to pay to the District Court as a result of his DUI conviction. Miller immediately sent a letter to the District Court in which he objected to Ellenburg's request. Miller informed the District Court that Ellenburg's monthly financial reports revealed that Ellenburg had sufficient money at the end of each month to pay his fines without difficulty. Based on this information, the District Court ordered Miller to determine Ellenburg's financial status and report back to the court.
8 In order to determine Ellenburg' financial status, Miller decided that it was necessary to search Ellenburg's office which was located in his Missoula residence. On June 13, 1997, Miller and his partner, Chuck Hill, arrived at Ellenburg's residence and informed him that they were going to search his office. Miller then searched the office and seized several documents, including Ellenburg's bank statements and cancelled checks.
Miller then returned to his office where he analyzed the documents he had seized. He discovered that since his release to the ISP, Ellenburg had written checks worth more than $15,000 to local bars and casinos. Because a condition of Ellenburg's release to ISP was that he not enter any bars or casinos, Miller determined that Ellenburg had violated the conditions of his release and, therefore, should be arrested and returned to the Montana State
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