                                                                                         February 6 2008


                                         DA 07-0266

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2008 MT 37



STATE OF MONTANA,

              Plaintiff and Appellant,

         v.

PRESTON A. MADPLUME,

              Defendant and Appellee.


APPEAL FROM:          District Court of the Twentieth Judicial District,
                      In and For the County of Lake, Cause No. DC-2004-108
                      Honorable C. B. McNeil, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant
                      Attorney General, Helena, Montana

                      Mitchell A. Young, Lake County Attorney, Polson, Montana

               For Appellee:

                      Jim Wheelis, Chief Appellate Defender, David Avery, Assistant Appellate
                      Defender, Helena, Montana



                                                  Submitted on Briefs: January 4, 2008

                                                             Decided: February 5, 2008


Filed:

                      __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     In October 2004 Preston A. Madplume (Madplume) was charged with the offense

of sexual intercourse without consent after DNA evidence revealed the presence of the

accuser’s DNA on Madplume’s finger. An omnibus hearing was scheduled but was

continued seventeen times at Madplume’s request. During this time Madplume signed a

waiver of his right to a speedy trial. In September 2005 Madplume moved to suppress

the DNA evidence on the ground that it was obtained without a warrant and therefore

resulted from an unlawful search of his person. The District Court granted his motion.

The State appealed and in January 2007 we reversed and remanded for further

proceedings. Madplume’s omnibus hearing was ultimately held on March 14, 2007. On

that date, he filed a motion to dismiss for violation of the right to a speedy trial. The

District Court granted the motion without a hearing and the State appeals. We reverse

and remand.

                                           ISSUE

¶2     The question presented is whether the District Court properly granted Madplume’s

motion to dismiss for violation of the right to a speedy trial.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     The factual background of this case was presented in State v. Madplume, 2007 MT

11, 335 Mont. 290, 150 P.3d 956, and is not relevant to the issue before us; therefore, it

will not be repeated here.        Th i s appeal concerns the procedural background of

Madplume’s case only.




                                              2
¶4     It is undisputed that 894 days had elapsed from the time Madplume was charged

and the date on which he filed his motion to dismiss. Madplume argued to the District

Court and to this Court on appeal that this passage of time resulted in a violation of his

constitutional right to a speedy trial.

¶5     The District Court granted Madplume’s motion to dismiss. The State appeals.

                                STANDARD OF REVIEW

¶6     A criminal defendant’s claimed violation of the right to a speedy trial presents a

question of constitutional law. We review a trial court’s resolution of such questions for

correctness and will not disturb findings underlying a district court’s speedy trial ruling

unless the findings are clearly erroneous. State v. Spang, 2007 MT 54, ¶ 7, 336 Mont.

184, ¶ 7, 153 P.3d 646, ¶ 7 (citation omitted).

                                          DISCUSSION

¶7     Issue: Did the District Court properly grant Madplume’s motion to dismiss for
       violation of the right to a speedy trial?

¶8     Madplume moved the District Court to dismiss the charges against him, asserting

the State had violated his right to a speedy trial. The District Court granted his motion

finding that he had been prejudiced by the lengthy delay and that the State had not met its

burden of disproving prejudice. The State contends the District Court’s conclusion is

erroneous.

¶9     We note that this case proceeded through the District Court and to this Court on

appeal before we issued our decision in State v. Ariegwe, 2007 MT 204, 338 Mont. 442,

167 P.3d 815, in which we announced a comprehensively-revised speedy trial test that



                                              3
“more closely tracks the balancing approach envisioned by the [U.S.] Supreme Court in

Barker1, Doggett2, and other post-Barker cases.” Ariegwe, ¶ 106. As a result, the parties

argued to the District Court and that court ruled based on analysis of the standards set

forth in City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148, 965 P.2d 866, overruled

in part by Ariegwe. Thus, the District Court did not have the opportunity to analyze the

speedy trial issue under the new Ariegwe framework.

¶10      On appeal, the State filed its opening brief before Ariegwe was issued; however,

Ariegwe’s new test was published before Madplume responded or the State replied.

Neither party, however, analyzed the speedy trial issue under the newly-announced test

but continued to rely upon a Bruce analysis. Since the timing of Ariegwe’s publication

precluded the court and the parties from analyzing the speedy trial issue under this new

framework, and as we recently did in State v. Smith, 2008 MT 7, ¶¶ 23-24, 341 Mont. 82,

¶¶ 23-24, ___ P.3d ___, ¶¶ 23-24, we deem it appropriate to remand this matter to the

District Court without prejudice to a timely appeal thereafter by either party, with

instruction that the District Court apply the Ariegwe analysis in resolving the speedy trial

issues herein presented.

                                         CONCLUSION

¶11      We reverse the District Court’s dismissal of Madplume’s case and remand for

analysis under Ariegwe.




1
    Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972).
2
    Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686 (1992).


                                                  4
                              /S/ PATRICIA COTTER



We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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