                                No. 86-115
               TIV THE SUPREME COURT OF THE STATE OF MONTANA

                                   1986




TFE STATF OF MONTANA,
                Plaintiff and Respondent,
       -vs-
STEVE N. KERNS,
                Defendant and Appellant.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable Charles Luedke, Judge presiding.

COUNSEL OF RECORD:

       For Appellant:
                Hennessey Law Office; Joseph P. Hennessey, Billings,
                Montana

       For Respondent :
                Hon. Mike Greely, Attorney General, Helena, Montana
                James M. Scheier, Asst. Atty. General, Helena
                Harold Hanser, County Attorney, Billings, Montana
                Charles A. Bradley, Deputy County Attorney, Billings




                                   Submitted on Briefs: May 9, 1986
                                     Decided: September 9 , 1986




                                   Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
         Appellant was convicted of forgery, a felony, following
a jury trial in the District Court of the Thirteenth Judicial
District, Yellowstone County.       Prior to trial, the court
denied appellant's motions to dismiss for lack of speedy
trial.     Appellant appeals the denials.    We affirm the Dis-
trict Court.
         The sole issue is whether the appellant was denied his
constitutional right to a speedy trial.
         Respondent, State of Montana, filed a complaint against
appellant, Steve N. Kerns, alleging one count of forgery and,
in the alternative, one count of attempted theft.     Appellant
was arrested and released on his own recognizance on April 3,
1985.
         On October 28, 1985, appellant filed a motion to dis-
miss for lack of speedy trial, which was briefed, and the
trial date of November 4 was vacated.       On November 5, 1985,
appellant filed a motion in limine, and on November 27, the
motion to dismiss was denied and trial was set for December
9, 1985.      This period of time (33 days) is not chargeable
against the State.
        Appellant moved again for dismissal for lack of speedy
trial on December 9, 1985.      The trial commenced on December
9, and the case was submitted to the jury on December 11,
1985.     The District Court denied the motion to dismiss on
December 10, 1985.       The jury returned a verdict finding
appellant guilty of forgery.      The District Court ordered a
one-year deferred sentence contingent on forty hours communi-
ty service by appellant.      Appellant now appeals the denials
of his motions to dismiss.
      The essential chronology of the case progression from
a.rrest to trial appears from the record:

  April 3         Defendant arrested; released on his own
                  recognizance.
   April 8        State files affidavit and motion     for
                  leave to file information.
  April 12        Defendant files motion to dismiss;
                  hearing set for April 16.
  April 16        State files brief in opposition to
                  defendant's motion. Court grants
                  motion to file information, sets brief-
                  ing schedule on defendant's motion.
   April 25       Defendant files memorandum in support
                  of motion to dismiss.
   April 30       State files response to defendant's
                  memorandum.   Court sets June 4 as date
                  for omnibus hearing and July 29 as
                  trial date.
  May 1           Court denies defendant's motion to
                  dismiss.
   June 4         Court issues order that "pursuant to
                  agreement between court and counsel"
                  the omnibus hearing be continued until
                  June 25.
   June 25        Omnibus hearing held.
   July 19        State makes request for issuance     of
                  subpoenas. Subpoenas issued and
                  returns filed on July 25.
   August 14      Trial date vacated and reset for
                  November 4.
   October 24     State makes request for issuance     of
                  subpoenas. Subpoenas issued and
                  returns filed.
   October 28     Defendant files motion to dismiss for
                  lack of a speedy trial.
   November 1     State files brief in oppostion to
                  defendant's motion.
   (Trial.date vacated)
   November 5     Defendant files motion in limine.
   November 27    Court denies defendant's motion to
                  dismiss; trial set for December 9.
   December 3      Jury preselection.
  December 9       Trial begins.

      With reference to the chronology of events, the period.
of time from arrest on April 3, 1985, until May 2, 1985, the
day   following the District Court's denial of defendant's
motion to dismiss    (29 days), cannot be considered delay,
institutional or intentional.      Most of this period of time
involved defendant's motion to dismiss and related briefing.
       The period of time from June 4, 1985, to June 25, 1985
(21 days), cannot be delay chargeable against the Sta-te
because defendant's counsel agreed to a continuance of the
omnibus hearing to June 25.
       Institutional delay, occasioned by the District Court's
management of its calendar, occurred from June 26 to July 29,
1985, the first date of trial setting (33 days), and institu-
tional delay also occurred from July 29 to October 28, 1985
(91 days).   Finally, institutional delay occurred from Novem-
ber 28 to December 9, 1985, the date of trial (11 days).
       The total days chargeable to the State as institutional
delay, therefore, is 135 days.
       Once again we are asked to determine whether a criminal
defendant's constitutional right to a speedy trial has been
abridged.    Based on the record, we conclude that appellant's
right has not been abridged.
       We have utilized a four-part balancing test in deter-
mining whether a criminal defendant's right to a        speedy
trial, as guaranteed by the United States and Montana Consti-
tutions, has been denied.     State v. Larson (Mont. 1981), 623
P.2d 954, 38 St.Rep. 213; State v. Bailey (Mont. 1982), 655
P.2d 494, 39 St.Rep. 2242; State v. Haskins (Mont. 1986), 714
P.2d 119, 43 St.Rep.   290.   The parts of the test are:    (I)
length of delay; (2) reason for delay; (3) the defendant's
assertion of the right; and (4) prejudice to the defendant.
While none of the individual factors are dispositive, the
length of the delay is the triggering mechanism of the
four-prong test.   Bailey, supra.   Unless there is a period of
delay long enough to be presumptively prejudicial, no further
inquiry is required.    State v. Armstrong   (Mont. 1980) , 616
P.2d 341, 37 St.Rep. 1563; Bailey, supra.    The appellant has
failed to meet the threshold test, and no presumption of
delay attaches.
     The District Court's denial of appellant's motion to




                              /
We concur:
