                            NO.    92-509
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1993


STATE OF MONTANA,
                                            y+4 "
          Plaintiff and Appellant,          r .
                                            P
                                            PC-
                                            4
     v.
JACK STRONG,
          Defendant and Respondent.



APPEAL FROM:   District Court of the Tenth Judicial District,
               In and for the County of Fergus,
               The Honorable Peter L. Rapkoch, Judge presiding.




          For Appellant:
               Honorable Joseph P. Mazurek, Attorney General;
               Cregg W. Coughlin, Assistant Attorney General,
               Helena, Montana
               Tom Meissner County Attorney; Craig R. Buehler,
               Special Deputy County Attorney, Lewistown,
               Montana
          For Respondent:
               John L. Pratt, Esq., Roundup, Montana


                              Submitted on Briefs:     March 4, 1993
                                            Decided:   April 15, 1993
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
        The State of Montana (State) appeals an order entered by the
District Court for the Tenth Judicial District, Fergus County,
dismissing four misdemeanor charges filed against Jack Strong
(Strong) for lack of speedy trial.      We reverse and remand.
        We consider the following issue:
     Did the District Court err in dismissing the misdemeanor
charges against Strong because it concluded that 5 46-13-401, MCA,
had been violated?
        Strong was charged by complaint on November 11, 1990, and
again on December 13, 1990, with two counts of misdemeanor assault,
misdemeanor disorderly conduct, and violating the privacy in
communications statute, a misdemeanor. After pleading not guilty,
Strong's first trial resulted in a mistrial on March 26, 1991.
.x.L
xicer
         L7
         cne   misirial, ihe State filed a consoiidated complaint on
April 9, 1991, charging Strong with the same offenses.
        Strong pled not guilty to the charges on May 1, 1991, and
trial was scheduled for June 20, 1991.      Prior to commencement of
the second trial, Strong moved to continue the trial in order to
file a motion to dismiss for lack of speedy trial. On November 22,
1991, the Justice Court dismissed the charges against Strong.
        On December 2, 1991, the State appealed the order of dismissal
to the District Court.        After trial had been scheduled, and
continued at the request of Strong, and in one instance, upon the
District Court's own motion, Strong moved to dismiss the charges
for lack of a speedy trial.    On September 21, 1992, the District
Court dismissed the charges.
     The District Court found the time elapsing between November
13, 1990   (the date Strong entered his plea      to the initial
complaint), and June 20, 1991 (the date trial was scheduled
following the mistrial),    was 197 days.     The District Court
concluded a delay of this length was violative of Strong's right to
a speedy trial as set forth in 5 46-13-401 (2), MCA.     From that
order of dismissal, the State appeals.


     Did the District Court err in dismissing the misdemeanor
charges against Strong because it concluded that 5 46-13-401, MCA,
had been violated?
     When reviewing a District Court's conclusions of law, our
standard of review i 'n'hetherthe District Court's interpretation
                   ::
of the law is correct.     Steer, Inc. v. Department of Revenue
(IggO), 245 Mont. 470, 474-75, 803 P.2d 601, 603.    In this case,
the District Court dismissed this action on the sole basis that
strong was not brought to trial within six months of the date of
the entry of his first plea.   We hold this interpretation of the
law is incorrect.
    Section 46-13-401(2), MCA, provides:
    After the entry of a plea upon a misdemeanor charge, the
    court, unless good cause to the contrary is shown, shall
    order the prosecution to be dismissed with prejudice, if
    a defendant whose trial has not been postponed upon the
     defendant's motion is not brought to trial within 6
     months.
Apparently, the District Court interpreted the statute on its face
without considering the fact that a mistrial had been declared in
the first trial.    In its appeal to this Court, the State argues
that once a mistrial is declared, the speedy trial clock is reset
and begins to run anew from the date of mistrial.     The State is
correct.
     In State v. Sanders (1973), 163 Mont. 209, 516 P.2d 372, we
adopted, in part, the position of the American Bar Association in
its project on Minimum Standards for Criminal Justice.          For
purposes of a speedy trial analysis, Section 2.2 of that report
addresses when time begins to run following a mistrial.
     The time for trial should commence running
     (c) if the defendant is to be tried again following a
     mistrial, .. . , from the date of the mistrial, . . . .
Sanders, 516 P.2d at 375. Therefore, when a mistrial is declared,
the speedy trial clock is reset and begins to run from the date the
mistrial was declared.
     In this case, a mistrial was declared on March 26, 1991. None
of the time elapsing prior to this date should have been considered
by the District Court.   After the State refiled the charges and
Strong entered a plea to those charges, a second trial was
scheduled for June 20, 1991.   The time elapsing between March 26,
1991 and June 20, 1991, was a little less than three months.   This
time frame is clearly within the six month requirement of 5 46-13-
4Ol(2) , MCA.

        We hold the District Court erred by including the period of
time prior t o the mistrial in its calculation of total elapsed

time.     The order of dismissal is reversed.




We concur:
                                     April 15, 1993

                            CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Craig R. Buehler
Special Deputy County Attorney
505 West Main Street, Suite 210
Lewistown, MT 59457

Hon. Joseph P. Mazurek, Attorney General
Cregg W. Coughtin, Assistant
Justice Bldg.
Helena, MT 59620


Tom Meissner
Fergus County Attorney
701 E. Main St., Ste. A
Lewistown, MT 59457

John L. Pratt
attorney at Law
P. 0. Box 685
Roundup, MT 59072

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               STATE OF MONTANA
