                                                              No.    89-545

                                            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                    1990


    STATE OF MONTANA,
                                            Plaintiff and Respondent,
                v.
    DANIEL KURTIS MARQUARDT,
                                            Defendant and Appellant.



    APPEAL FROM:                                 District Court of the Twelfth Judicial District,
                                                 In and for the County of Chouteau,
                                                 The Honorable John Warner, Judge presiding.


    COUNSEL OF RECORD:
                                            For Appellant:
                                                Mark Bauer, Esq., Great Falls, Montana

                                    I   -   For Respondent:
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          -                                     Hon. Marc Racicot, Attorney General, Helena, Montana
         --                                     George Schunk, Assistant Attorney General, Helena,
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                                                Thomas J. Sheehy, Chouteau County Attorney, Fort
                                                 Benton, Montana
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                                                                  Submitted on Briefs:   April 12, 1990
                                                                              Decided: May 2 5 , 1990
    Filed:


                                                              d
                                                                  Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     In February 1989, Daniel Marquardt was tried in the District
Court of the Twelfth Judicial District, Chouteau County, on charges
of robbery and three counts of felony assault. The jury was unable
to reach a verdict and a mistrial was declared.       Marquardt was
retried and convicted on the same charges in May of 1989.         He
appeals.   We affirm.

     The sole issue on appeal is whether Marquardt was denied his
constitutional right to speedy trial because of the delay prior to
his first trial.
     The charges against Marquardt arose out of an October 1987
robbery at the Kurth Ranch near Fort Benton, Montana.     The facts
of the crime are not at issue.     Marquardt was arrested in Butte,
Montana, on April 21, 1988, and an information was filed against
him on May 2, 1988.     He was released on bail on May 6, 1988.
     Marquardtls trial was originally scheduled for October 3 ,

1988.   It was rescheduled for November 21, 1988, due to a conflict
of trial dates.    Marquardt moved for a change of venue and filed

a motion in limine on October 28, 1988, following which the parties
filed their respective briefs and a hearing was held.      Then the
term of District Judge Chan Ettien expired and the Honorable John
Warner took his place.       In January 1989, Judge Warner granted
Marquardtls motion for change of venue and set a trial date of
February 28, 1989. Marquardt moved to dismiss for denial of speedy
trial, but that motion was denied one week before the trial
commenced.

       The jury at Marquardt's first trial was unable to reach a
verdict.     A mistrial was declared.    When he was retried in May
1989, Marquardt was found guilty on all charges.


       Was Marquardt denied his constitutional right to speedy trial
because of the delay which occurred prior to his first trial?
       The right to a speedy trial is guaranteed by both the Sixth
Amendment to the United States Constitution and Article 11, Section
24 of the Montana Constitution.       It is a right of fundamental
importance.    Barker v. Wingo (1972), 407 U.S. 514, 515, 92 S.Ct.
2182, 2184, 33 L.Ed.2d 101, 108.
       The State argues on appeal that any delay in Marquardt Is first
trial is irrelevant in an analysis of a speedy trial claim.        It
cites the rule set forth in the American Bar Association Project
on Minimum Standards for Criminal Justice, Speedy Trial, Section
2.2,   (Approved Draft 1968), which was adopted by this Court in
State v. Sanders (1973), 163 Mont. 209, 214, 516 P.2d 372, 375:

            When time commences to run.
            The time for trial should commence running



            (c) if the defendant is to be tried again
            following a mistrial, an order for a new
            trial, or an appeal or collateral attack, from
             the date of the mistrial, order granting a new
             trial, or remand.
     In Sanders, defendant claimed that he was denied his right to
speedy trial.    He asked the Court, in analyzing the issue, to look
to the entire time between the filing of the information and his
second trial (after reversal of his first conviction).    This Court
applied the above rule and considered only the time between the
reversal and the beginning of the second trial.    Sanders, 516 P.2d
at 375.     The same rule was applied in State v. Fife (Mont. 1981),
632 P.2d 712, 38 St.Rep. 1334. Only the time between the reversal
of defendant's first conviction and the commencement of his second
trial was considered in the speedy trial analysis. Fife, 632 P.2d
at 714.
     Here, the claim is different.     Marquardt claims a denial of
his right to speedy trial only as to the period preceding his first
trial. Section 46-20-701, MCA, provides that this Court may review
on appeal errors affecting substantial rights.      There can be no
doubt that the District Court's denial of Marquardt's motion to
dismiss affected his substantial rights.        Had the motion been
granted, the remedy would have been dismissal of the case.      The

second trial, resulting in Marquardt's conviction, would never have
occurred.     However, under 5 46-20-104, MCA, Marquardt's right to
appeal did not arise until the court entered a judgment of convic-
tion against him. We conclude that the rule applied in Sanders and
Fife does not apply in this instance.      We hold that Marquardt
properly preserved the issue of denial of speedy trial at his first
trial and that it is an issue which may properly be considered in
this appeal.
     Support for our conclusion is found in Arnold v. McCarthy (9th
Cir. 1978), 566 F.2d 1377. There, after noting that the defendant
had timely raised his speedy trial claim before each trial, the
court analyzed whether defendant was deprived of his right to a
speedy trial in both his first trial, which resulted in a mistrial,
and his second trial, which resulted in a conviction.      Like the
defendant in that case, Marquardt asserted his right to speedy
trial in a timely manner prior to the mistrial.
     The four elements considered in judging a claim of denial of
the right to speedy trial are 1) the length of the delay, 2) the
reasons for the delay, 3) the defendant's timely assertion of the
right to speedy trial, and 4) the prejudice to defendant as a
result of the delay.   State v. Curtis (Mont. 1990), 787 P.2d 306,
313, 47 St.Rep. 277, 283.    The length of the delay serves as a
trigger for further analysis.   Curtis, 787 P.2d at 313.   The delay
between Marquardtls arrest and his first trial was 313 days.   That
length of time is sufficient to trigger further examination of his
claim.
     We next examine the reasons for the delay. Marquardt's trial
was originally set for October 3, 1988.      That date was barely
within 180 days of his arrest.     All of the time prior to October
3, 1988, must be charged to the State, but no intentional delay has

been shown.
     The court, on its own motion because of a conflict of trial
dates, reset trial to November 21.     Marquardt's change of venue
motion and motion in limine were filed before the November 21 trial
date (on October 27).   Briefing, argument, and the decision on the
motion for change of venue were not completed until January 17,
1989.     Not all of that time, though, may be attributed to Mar-
quardt.    Some delay in the intervening months was caused by the
retirement of Judge Chan Ettien.    The time from January 17, 1989,
to February 28, 1989, is chargeable to the State as institutional
delay.
     The State is responsible for a sizable portion of the delay
before Marquardtts first trial.     However, the delay was largely
institutional and not under the control of the prosecution.
Because there is no indication that the delay was purposeful on
the part of the State, it weighs less heavily than if it had been
caused by the State's oppressive tactics.   State v. Ackley (1982),
201 Mont. 252, 256, 653 P.2d 851, 853.
     Marquardt asserted his right to a speedy trial in a timely
manner by motion to dismiss on January 30, 1989.    Therefore, the
third element of a speedy trial analysis is met.
     The interests protected by the right to speedy trial are
prevention of oppressive pre-trial incarceration, minimizing the
defendant's anxiety and concern, and limiting impairment of the
defense.   Curtis, 787 P.2d at 315.      Marquardt was incarcerated
only sixteen days prior to trial.     He asserts that his freedom of
movement was hampered under the terms of his bail because he was
required to call the Silver Bow County Sheriff's Office each day.
However, we note that while he was out on bail prior to trial, he
twice requested and was given permission to leave the State of
Montana.
     A certain amount of anxiety and concern is inherent in being
accused of a criminal offense.   State v. Waters (1987), 228 Mont.
490, 494, 743 P.2d 617, 620. Marquardt has not alleged any unusual
anxiety or concern arising out of being accused of these charges.
     Marquardt claims that his defense was impaired because of the
delay in bringing him to trial. He states that a potential witness
died between the time of the crime and the time of the trial.
According to Marquardt, the owner of the car he was driving when
he was arrested would have testified in his behalf, had that owner
still been living at the time of trial. Marquardt does not explain
what the owner would have testified to, so it is impossible to
judge the prejudicial effect of the witness's unavailability.
     Marquardt also claims that loss of memory on the part of three
victims of the robbery and on the part of a co-conspirator who
testified against him impaired his defense. We find nothing in the
record to substantiate this claim.
     In sum, the delay before trial of this case was long, but it
has not been shown to be purposeful on the part of the State. Mar-
quardt asserted his right to speedy trial in a timely manner, but
he has not shown any significant prejudice to his case resulting
from the delay.    On balance, we hold that Marquardt was not

deprived of his constitutional right to a speedy trial.
     Affirmed.
