                                 No. 87-03
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987



STATE OF MONTANA,
                 Plaintiff and Appellant,
         -vs-
LONNIE MOEHR,
                 Defendant and Respondent,




APPEAL FROM:     The District Court of the Thirteenth Judicial District,
                 In and for the County of Big Horn,
                 The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Hon. Mike Greely, Attorney General, Helena, Montana
                 John Paulson, Assistant Attorney General, Helena
                 Joe A. Rodriguez, County Attorney, Hardin, Montana
         For Respondent:
                 James E. Torske, Hardin, Montana



                                   Submitted on Briefs: May 21, 1987
                                        Decided:   June 24, 1987
Filed:    JUN 2 4 1987

                                   *I

                                   Clerk
Mr. Justice R.C.   McDonough delivered the Opinion of the
Court.

     The State of Montana appeals the September 18, 1986,
order of the Thirteenth Judicial District Court, County of
Big Horn, granting defendant's motion to dismiss for lack of
speedy trial. We reverse.
     On October 22, 1985, the Big Horn deputy county attorney
filed an information and affidavit of probable cause alleging
attempted sexual intercourse without consent by defendant, as
specified in 55 45-4-103 and 45-5-502(1), MCA.
     Defendant was arrested and plead not guilty to the
charge of attempted sexual intercourse without consent at his
arraignment October 22, 1985. On the same date, defendant
was released from jail upon posting a $5000 bond.
     An omnibus hearing was held February 28, 1986, and trial
was scheduled for April 21, 1986. Immediately before trial
on April 21, 1986, the State moved to amend the information
by changing the reference code section from § 45-5-502, MCA,
to S 45-5-503, MCA.    Section 45-5-502, MCA, is the sexual
assault statute and 5 45-5-503, MCA, addresses sexual inter-
course without consent. Defendant objected to the amendment
and requested a continuance should the motion to amend be
granted. The district judge granted the motion to amend and
also granted defendant's request for continuance.
     On May 20, 1986, the deputy county attorney filed a
motion for trial date requesting trial in the immediate
future to avoid any speedy trial problems. Trial was sched-
uled for August 18, 1986. On that date, Judge Luedke deemed
himself disqualified, and the parties agreed to have Judge
Sande appointed as presiding judge.    Trial was rescheduled
for August 20, 1986, but was vacated due to the unavailabili-
ty of a court reporter. Defendant filed a motion to dismiss
for lack of speedy trial on August 22, 1986. A hearing on
the motion to dismiss was held September 12, 1986, and the
District Court subsequently entered its order granting the
motion to dismiss.
     The District Court found the delay of 304 days to be
attributable to the State.     The court disagreed with the
State's contention that the delay following defendant's
request for continuance should be chargeable to defendant.
The court found the amendment to the information to be one of
substance and not of form, therefore defendant was entitled
to a continuance without defendant being charged for delay
thereafter.   The State appeals and raises the following
issue:
     Whether the District Court erred in granting defendant's
motion to dismiss for lack of a speedy trial?
     The State contends that the amendment to the information
was one of form and not of substance. Therefore, the contin-
uance was not necessary and the subsequent delay is charge-
able to defendant. We agree.
     While the information incorrectly cited the sexual
assault statute, 5 45-5-502(1), MCA, the intended charge of
attempted sexual intercourse without consent is quite clear
in the information:

          Jim Vogel, Deputy County Attorney of Big Horn
     County, deposes and says that on or about October
     20,   1985,     near  Jack's   Homart   Store   and
     Graham-Staunton Chevrolet on Custer Street, Big
     Horn, County, Montana, the above-named Defendant
     committed the offense of ATTEMPTED SEXUAL INTER-
     COURSE WITHOUT CONSENT as specified in 45-4-103 and
     45-5-502 (I), M.C.A., 1983.
          The facts constituting the offense are:
          That at the above place and the above time,
     the above-named defendant committed the offense of
     ATTEMPTED SEXUAL INTERCOURSE WITHOUT CONSENT in
     that he knowingly attempted to have sexual
     intercourse without consent with another, namely,
     Mary Looks Behind, not his spouse, with the victim
     sustaining bodily injury, namely, a dislocated
     shoulder, and numerous bruises during the assault,
     contrary to the form, force and effect of the
     statutes in such case, made and provided and
     against the peace and dignity of the State of
     Montana.
     Section 45-5-503 (1), MCA, defines sexual intercourse
without consent as, "A person who knowingly has sexual inter-
course without consent with a person of the opposite sex not
his spouse commits the offense of sexual intercourse without
consent."   The allegations in the information list all the
elements of the crime of attempted sexual intercourse without
consent.
     The recent case of State v. Handy (Mont. 1986), 719 P.2d
766, 43 St.Rep. 897, addresses the issue of sufficiency of an
information which includes an incorrect statutory cite.    In
Handy, the information charged the defendant with violating
61-8-406, MCA, "in that said defendant did knowingly or
purposely or negligently drive or be in actual physical
control of a motor vehicle while under the influence of
alcohol." The cite to § 61-8-406, MCA, which concerns opera-
tion of a motor vehicle with a blood alcohol concentration of
0.10 or more, was incorrect. The State moved to amend the
information by changing the statutory cite to       61-8-401,
MCA, which contains language nearly identical to that used in
the information.    This Court found amendment to be proper
because the defendant was clearly apprised of the charge.
719 P.2d 768, 43 St.Rep. 900.
     In State v. Longneck (1981), 196 Mont. 151, 640 P.2d
436, this Court stated, " [W]hen the facts, acts and circum-
stances are set forth with sufficient certainy to constitute
an offense, it is not a fatal defect that the complaint gives
the offense an erroneous name." 196 Mont. 154, 640 P.2d 438.
In the present case, the facts set forth in the information
leave no room for doubt that defendant was being charged with
attempted sexual intercourse without consent. Additionally,
the offense was correctly named; this Court has previously
held that an information is sufficient if it properly charges
an offense in the language of the statute describing the
offense.   State v. Hankins (Mont. 1984), 680 P.2d 958, 41
St.Rep. 762.
     We find the information in this case fully apprised
defendant of the offense for which he was being charged.
Thus, the amendment to the information was one of form which
did not prejudice the rights of defendant and trial could
have occurred April 21, 1986, as scheduled without impairing
the defense.    Section 46-11-403(2), MCA, provides:     "The
court may permit an information to be amended as to form at
any time before verdict or finding if no additional or dif-
ferent offense is charged and if the substantial rights of
the defendant are not prejudiced."
     We find the period of delay incurred following the grant
of continuance to be chargeable against defendant.        The
record shows that trial would have occurred within six months
of the filing of the charge had defendant not moved for
continuance. Defendant being responsible for the subsequent
delay, the State does not have the burden of explaining the
delay or showing absence of prejudice to defendant.       See
State v. Tiedemann (1978), 178 Mont. 394, 584 P.2d 1284.
     The District Court is reversed and this matter remanded
for proceedings consistent with this opinion.

                                @
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                                -
                                L         Justice

We Concur:
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