November 7 2007
DATED this   1
             %
             of November, 2001.
Justice James C. Nelson, dissenting.

       I dissent from the Court's Order remanding this case to the District Court for entry
of findings of fact and conclusions of law. I do so for the following reasons.
       First, there is no need to remand for findings of fact, as we have a sufficient record
on which to apply the revised speedy trial test set out in State v. Ariegwe, 2007 MT 204,
338 Mont. 442, 167 P.3d 815. Indeed, in Ariegwe we applied the test to the facts of that
case without remanding for fact-finding by the District Court, observing that "[tlhe
factual record before us, which includes a complete transcript of the parties' arguments at
the hearing on Ariegwe's motion, is well-developed, thus enabling us to evaluate his
speedy trial claim pursuant to the revised speedy trial test." Ariegwe,       7 120.   Likewise,
the record in the case at hand contains all of the relevant factual information necessary to
evaluate Billman's speedy trial claim under Ariegwe.
       Second, there is no need to remand for conclusions of law. Whether Billman has
been denied his right to a speedy trial is a question of constitutional law; and our standard
of review, accordingly, is de novo. Ariegwe,    7 119; City of   Billings v. Bruce, 1998 MT
186,l 18,290 Mont. 148,T 18,965 P.2d 8 6 6 , l 18; State v. Spang, 2007 MT 54,17, 336
Mont. 184, 7 7, 153 P.3d 646, T/ 7. Like the District Court, we evaluate the factual
circumstances pursuant to the four-factor balancing test to determine whether they
amount to a speedy trial violation. Ariegwe, T/ 119. Indeed, when this case is back before
this Court, we will perform precisely the same weighing and balancing of the four factors
as did the District Court. Since our review is plenary, we will give no deference to the
court's legal determinations in that regard. Thus, we are fully capable of determining
whether the factual circumstances amount to a speedy trial violation without any further
action on the part of the District Court.
       Third, in its briefs on appeal the State actually requests that this Court evaluate
Billman's speedy trial claim pursuant to an approach along the lines of Ariegwe. With
respect to Bruce's 275-day burden-shifting rule (see Bruce,      7 561, the   State asserts that
"[slhifting the burden of proof to the prosecution requires the State to disprove the
existence of prejudice or, conversely, to positively prove a negative, a task which the
State is ill-suited to perform in a vacuum regardless of the point in the proceedings in
which it must be undertaken." The State suggests that an approach under which "[tlhe
defendant should ordinarily come forward with evidence of impairment of the defense or
other prejudice resulting from the delay, and the State should then have the burden, and a
full opportunity, to rebut the claim" would "make better sense for both the parties and the
trial court." CJ: Ariegwe,   7 56.   The State also criticizes Bruce's approach under Factor
Three (see Bruce,   7 57), pointing out that the   State was precluded in the case at hand
from arguing that Billman "acquiesced in the delay and did not actually want a speedy
trial" and the District Court likewise was precluded from reviewing "the timing and
circumstances of Billman's assertion of the right to a speedy trial."          CJ: Ariegwe,
77 79-80.   Yet, despite the State's prescient request that we reconsider the Bruce test (the
State's briefs were filed before Ariegwe was handed down), the State does not request a
remand or even hint that one is necessary.
       In fact, in State v. Rose (No. 05-129), the State emphatically objected to a request
by Rose "for the opportunity to apply the new Ariegwe criteria to the current record" by
way of an oral argument before this Court. Rose pointed out that the district court
applied the Bruce test to the facts of his case and, therefore, did not take into account
such issues as whether Rose actually wanted a speedy trial. The State argued, however,
that oral argument "is unnecessary and is not an efficient use of judicial resources." The
State pointed out that "[tlhe facts in Rose's case were thoroughly established at the
evidentiary hearing." The same is true in the case at hand. The State also pointed out
that "[tlhis Court is fully capable of applying the established facts to the modified speedy
trial analysis it set forth in Ariegwe without oral argument." Likewise, in the case at
hand, we are fully capable of evaluating the factual circumstances pursuant to the revised
speedy trial test without any further action on the part of the District Court. Notably, we
summarily denied Rose's request based on the State's objection. See Order, State v.
Rose, No. 05-129 (October 3 1,2007).
       Fourth, remanding this case will unnecessarily prolong the final resolution of
Billman's speedy trial claim. If, as the District Court already concluded, Billman's right
to a speedy trial was in fact violated, then the only harm caused by the Court's remand is
needless expenditures of time and resources. But if, as I believe on the record presently
before us, Billman's right to a speedy trial was not violated, then the Court's remand is
creating untenable consequences. In particular, the State is entitled to prosecute the
charges against Billman, and Billman is entitled to mount an effective defense. Both
parties should be permitted to do so before the case becomes stale due to erosion or loss
of evidence, witnesses, and memories. The events in question occurred on January 27,
2006-648    days ago, as of November 6, 2007. By delaying prosecution of the charges
just so that the District Court can recite facts that are already apparent on the record
before us and then conduct a balancing of the four factors that we, in turn, will review de
novo, the Court is unnecessarily jeopardizing both the State's ability to prosecute and
Billman's ability to defend himself.'
      Fifth, the Court provides no justification for remanding this case. The Court
simply "deem[s] it appropriate" to do so. However, as explained above, Ariegwe is
authority for taking the opposite course of action, i.e., resolving the speedy trial issue
without a remand. Moreover, given the interests at stake here, I cannot agree with
delaying resolution of Billman's speedy trial claim based on such a conclusory rationale.


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       ' As noted, on the record before us, I believe that Billman's right to a speedy trial
was not violated as a result of the 3 1 1-day delay between his arrest (January 27, 2006)
and the final trial setting (December 4, 2006). However, I may well change my mind
about that following firther delay for what I believe are pointless proceedings in the
District Court (delay which clearly is not attributable to Billman). As it is, a 31 1-day
delay in bringing an accused to trial on relatively simple charges of DUI, driving while
suspended or revoked, and driving without proof of liability insurance is disconcerting
and, here, is only overcome by the State's persuasive showing on the issue of prejudice
and the low culpability associated with the delay attributable to the State. But there will
come a time when the amount of delay in prosecuting a simple DUI case will, in my
mind, constitute per se prejudice to the accused and place on the State an insurmountable
burden of justifying such delay. See Ariegwe, 17 60, 6 1.
       In sum, remanding this case to the District Court is not justified by an inadequate
record on appeal. It is not justified by this Court's inability on the present record to
evaluate the factual circumstances pursuant to the four-factor balancing test. It was not
even requested by the parties. In fact, when faced with a similar request by the defendant
in State v. Rose, the State emphatically objected on the ground that it was "unnecessary
and . . . not an efficient use of judicial resources." Simply put, remanding this case to the
District Court serves no meritorious purpose whatsoever.
       Worse still, because I believe that the District Court erred in granting Billman's
motion to dismiss for violation of his right to a speedy trial, I also conclude that the
Court's action here needlessly hampers the State's legitimate interest in prosecuting the
charges against Billman and infringes Billman's constitutional rights to mount an
effective defense and to due process generally. Indeed, the Court's approach may be the
straw that breaks the back of Billman's constitutional right to a speedy trial.
       I would apply the four-factor balancing test, as clarified and modified in Ariegwe,
to the facts of this case now, rather than later. I dissent from the Court's contrary
decision.
