                                          No. 97-258

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                             1997


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

LANCE RICHARD GOWAN,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and for the County of Flathead,
                     The Honorable Katherine R. Curtis? Judge presiding


COUNSEL OF RECORD:

              For Appellant:

                     Richard L. Musick, Attorney at Law, Kalispell, Montana

              For Respondent:

                     Ron. Joseph P. Mazurek, Attorney General; Pamela P. Collins,
                     Assistant Attorney General; Helena, Montana

                     Thomas J. Esch. Flathead County Attorney; Ed Corrigan,
                     Deputy County Attorney; Kalispell. hlontana


                                                       Submitted on Bricfs: December 18, 1097

                                                                  Decided: December 3 0 , 1 9 9 7
Filed:



                                          16 Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.

       Pursuant to Section 1, Paragraph 3(c), Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be cited as precedent and shall be published

by its filing as a public document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Group.

       Lance R. Gowan appealed to the District Court for the Eleventh Judicial District in

Flathead County from a comiction in the Justice Court for driving with a suspended license.

Following a jury trial ten months later, he was found guilty and sentenced by the District

Court. Gowan appeals. We affirm the judgment of the District Court.

       There are two issues on appeal:

       1.      Was Gowan denied his constitutional right to a speedy trial?

       2.      Was it ineffective assistance of counsel for Gowan's counsel to fail to move to

dismiss the charge based on an alleged violation of the right to a speedy trial?

                                 FACTUAL BACKGROUND

       On November 25, 1995, Gowan was charged with driving while his license was

suspended, pursuant to    5   61-5-212, MCA. He was found guilty in a nonjury trial in the

Flathead County Justice Court. On approximately February 29, 1996, Gowan, who appeared

pro se, appealed the conviction to the District Court for a trial de novo. He based his appeal

on the alleged violation of his constitutional right to a jury trial.
       On March 8, 1996, the District Court scheduled a jury trial for May 20, 1996. After

the original trial date had been vacated, the District Court, on August 7 , 1996, rescheduled

the trial for September 23, 1996. On August 14,1996, counsel filed notice of appearance as

Gowan's counsel. The District Court amended the date of trial, and a jury trial was held on

December 1 1 , 1996. Gowan was found guilty of driving while his license was suspended.

After a sentencing hearing in February 1997, the District Court sentenced Gowan to six

months in jail, with credit for the time that hc had already served.

                                       DISCUSSION

       Was Gowan denled 111s constitutional right to a speedy trial?

       We review a district court's conclusions of law to determine whether its interpretation

of the law is correct. See Carbon County v. Union Reserve Coal Co. (1995),271 Mont. 459,

469,898 P.2d 680,686; see also Kreger v. Francrs (1995),271 Mont. 44,447,898 P.2d 672,

674; Steer, Inc. v. Department of Revenue (1990). 245 Mont. 470, 474-75, 803 P.2d 601,

603-04.

       Gowan contends that the District Court erred when it failed to dismiss the

misdemeanor charge against him pursuant to 3 46-1 3-401(2),MCA, which requires that the

court dismiss charges against a defendant who is not brought to trial within six months.

       However, when a defendant receives a tna1 in city or justice court wttlnn six months

from the date of his initial appearance, and then appeals to district court for a new trial,

5 46-13-401(2),MCA, does not apply. See State v. Bullock(1995), 272 Mont. 361,368,901
P.2d 61, 66-67; State v. .Mctntz (1994), 269 Mont. 135, 138, 887 P.2d 251, 253; Sture v.

Surrford (1990), 244 Mont. 41 1,415,796 P.2d 1084, 1086. On appeal from justice court to

district court for a new trial, we consider whether the defendant has received a speedy trial

pursuant to the criteria in Barker v. U'ingo (1972), 407 U.S. 514,92 S. Ct. 21 82,33 L. Ed.

2d 101. See Bullock, 272 Mont. at 368-69,901 P.2d at 67; Sunford, 244 Mont, at 416, 796

P.2d at 1087.

       Here, Gowan clearly received a trial at justice court within the six-month time limit.

Accordingly, $46-13-401(2), MCA, does not apply. We must then consider the delay in the

District Court pursuant to Barker,

       The Barker test requires that we consider: ( I ) the length of the delay; (2) the reason

for the delay; (3) the assertion of the right to a speedy trial by the defendant; and (4) the

prejudice to the defense. See Barker, 407 U.S. at 530,92 S. Ct. at 2192,33 L. Ed. 2d at 117.

We have held that we need not consider the remaining factors unless our review of the first

factor reveals that the length of the delay is presumptively prejudicial. See State v.

Thompson (1903), 263 Mont. 17,32>865 P.2d 1125, 1134. Ifthe delay is over 200 days, we

generally presume that the delay has been prejudicial. See Thompson, 263 Mont. at 32, 865

P.2d at 1135.

       The delay between Gowan's appeal to the Distriet Court and his trial was over 280

days and, thus, we may presume that the delay was prejudicial. However, even if we

presume that the length of the delay prejudiced Gowan, we conclude that based on the nature
of the claim against him, which did not rely for proof on the memory of any witncss, the

State has rebutted the presumption of prejud~ce that the delay hcre was not unreasonable.
                                              and

Therefore, we need not d~scuss length the second and third Barker factors.
                             at

         We consider the prejudice to a defendant according to three factors: (1) pretrial

incarceration; (2) anxiety and concern; and (3) impairment of defense. See State 1,. Hernbd

(1992), 254 Mont. 407,413-14,838 P.2d 412,416. Of these three, the most critical factor

is the impairment to the defense. See State L. Collier (1 996), 277 Mont. 46, 56-57,910 P.2d

376,383.

         Gowan has made no effort to substantiate how his defense has been impaired by the

delay. In fact, the charge against him presents no concerns whatsoever regarding such thtngs

as the destruction of evidence, difficulty in presentmg witnesses, or other sim~lar
                                                                                  t~mc-

sensitive constraints to his defense. Moreover, Cowan was not imprisoned prior to trial, nor

has he alleged anxiety or concern as a result of the delay. Accordingly, u e hold that Gowan

was not prejudiced by the delay, and that his constitutional right to a speedy trial has not bcen

violated.

         As a result of our holding that Gowan's right to a speedy trial %as not violated, we

also hold that the "failure" of Gowan's counsel to move for dismissal on those grounds does

not constitute ineffective assistance of counsel. We affirnl the judgment of the District

Court.
We Concur:
                                        December 30, 1997


                                  CERTIFICATE OF SERVICE

1 hereby certify that the follouing certified order u a s sent by United States mail, prepaid. to the
following named:
LANCE R. GOWAN
50 TWIN ACRES DRIVE, #I3
kALISPELL MT 59901

HON. JOSEPH P. MAZUREK. ATTORNEY GEKER4L
PAM COLLINS. ASSISTANT
2 15 NORTH SANDERS
HELENA MT 59620

ED CORRIGAN
DEI'UTI' COUNTY AT TORIU'EY
BOX 1516
KALfSPELL MT 59903-15 16



                                                      ED SMITH
                                                      CLERK OF THE SUPREME COURT
                                                      STATE OF MONTANA
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                                                     BY:               ,             .
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