                            NO.     93-245
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1993


STATE OF MONTANA,
          Plaintiff and Appellant,
   -vs-
KEVIN E. JENKINS,
          Defendant and Respondent.




APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Larry W. Moran, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Susan L. Wordal, City Prosecutor, City of Bozeman,
               Bozeman, Montana
          For Respondent:
               Pamela S. Snyder; Bryan & Atkins, Bozeman, Montana


                             Submitted on Briefs:       August 12, 1993
                                             Decided:   November 18, 1993
Filed:


                                    I

                                  Clerk
Justice John Conway Harrison delivered the Opinion of the Court.


     This is an appeal from the District Court of the Eighteenth

Judicial District, Gallatin         County, the Honorable Larry W. Moran
presiding.        Appellant State of Montana (State) appeals from the

dismissal    of    defendant's   driving       under   the    influence   of   alcohol

charge for lack of a speedy trial.               We reverse and remand.

     The issue is whether the District Court erred in ruling that

the criteria for evaluating speedy trial issues enunciated in

Barker v. Wingo (L972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d
101, did not apply in this case.

     On September 2, 1991, the City of Bozeman charged Kevin E.

Jenkins (Jenkins) with driving under the influence of alcohol, a

misdemeanor.        The facts of the crime are not at issue.                   Jenkins

requested a jury trial in Bozeman City Court, which was held on

January 31, 1992.       Following a guilty verdict, Jenkins appealed on

that day to the Gallatin County District Court.

     Jenkins filed a motion to dismiss for failure to state an

offense on July 1, 1992.         The State responded to Jenkins' motion on

July 9, 1992.       A hearing on Jenkins' motion to dismiss was set for

August 24, 1992; however, the District Court granted the State a

continuance, as the arresting officer was to be in Helena, Montana,

on duty-related matters at that time.                        Over no objection by

Jenkins,     the hearing was rescheduled for September 8, 1992. At

that hearing, the District Court denied Jenkins' motion to dismiss.

     Due to the crowded court docket (especially a time-consuming


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murder trial), the judicial election, court vacation and a week of

court administrative duties, the court's calendar was booked until

January 25, 1993, when a scheduling conference was held to select

Jenkins' trial date.           At that conference, the court set trial for

April 9, 1993,         the   earliest   available   date.     On April 8, 1993,
Jenkins filed a motion to dismiss for lack of a speedy trial. On

April       9, 1993, after hearing arguments from Jenkins and the State,

the court granted Jenkins' motion.

        The right to a speedy trial is guaranteed by both the Sixth
Amendment to the United States Constitution and Article II, Section

24     of    the   Montana   Constitution.    This right is of fundamental

importance and we analyze it under the four-factor test set out in
Barker.        State v. Heffernan (1991), 248 Mont. 67, 69, 809 P.2d 566,
567;    State v. Robbins (1985), 218 Mont. 107, 115, 708 P.2d 227,

233; State v. Ackley (1982),            201Mont. 252, 255, 653 P.2d 851, 853;
State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518,

568 P.2d 162, 163-64.

        The factors of the test are:           1) length of delay; 2) reason

for delay: 3) defendant's assertion of his right to a speedy trial:

and 4) prejudice to the defendant.                  Barker,   407 U.S. at 514;

Heffernan,         809 P.2d at 567.     While no one factor is dispositive on

the issue of speedy trial, they "must be considered together with

such other circumstances as may be relevant.                The Court must still

engage in a difficult and sensitive balancing process.lV                State   v.

Larson (1981), 191 Mont. 257, 261, 623 P.2d 954, 957 (citation

omitted).          In the instant case, the District Court determined that
the four-factor Barker test did not apply.        Moreover, the court did
not apply the balancing process referred to in Larson.
       The first factor of the test is length of delay.         The court
need not go beyond this factor unless the delay is presumptively
prejudicial.      Barker, 407 U.S. at 530.      The length of delay, from
Jenkins' notice of appeal to the hearing on his motion to dismiss
for lack of a speedy trial, was 433 days.           Section 46-13-401(2),
MCA, addresses a defendant's right to a speedy trial in misdemeanor
cases:
       (2) 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.
The State met this statutory requirement by bringing Jenkins to
trial in Bozeman City Court within six months.          The parties agree
that     the ensuing      433-day   delay,   especially in   light of a
misdemeanor charge, is presumptively prejudicial. The court, then,
must balance the remaining factors articulated in Barker.        State v.
Sunford (1990), 244 Mont. 411, 416, 796 P.2d 1084, 1087.
       The second factor of the test is reason for delay. In
analyzing      this   factor,   the court balances the State's actions
against those of the defendant.              It must compare the State's
exercise of reasonable diligence in bringing a defendant to trial
with the percentage of delay attributable to the defendant.         State
v. Freeman (1979), 183 Mont. 334, 338-39, 599 P.2d 368, 371.
       In this case, the District Court found:
       [T]he    State did nothing      intentionally to delay the
                                       4
     prosecution of the case.     They acted properly.   They
     acted consistently.   The delays in the case are caused
     simply because the case can never be brought to trial
     because of the condition of the court dockets. . . . We
     simply could not grind the thing out. And that's not the
     Defendant's fault.    It's not the State's fault. It
     simply is recognition of a circumstances that exists.

     The District Court, citing a crowded court docket, accepted

full responsibility for the delay.            However,   the   District   Court
erred in finding that neither Jenkins nor the State bore any

responsibility for the delay.               The District Court must now

determine the number of days attributable to each party, bearing in

mind that unintentional delay is not held against the State to the

same extent as       intentional delay designed to gain a tactical

advantage over the defendant.     Heffernan, 809 P.2d at 569; State v.

Marquardt (1990),    243 Mont. 133, 134-35, 793 P.2d 799, 801 (citing

Acklev,     653 P.2d at 853).      The court must then weigh this
computation against the other factors set out in Barker.

     The third factor of the test is assertion of the right to

speedy trial.       "The proper time to assert the right to a speedy

trial is prior to the actual commencement of the trial, usually at

the time the trial date is set, or the time the case is called to

trial."     State v. Steward (1975),       168 Mont. 385, 390-91, 543      P.2d

178, 182.    In this case, the District Court determined that Jenkins

satisfied the third factor by bringing his motion on April 8, 1993,

one day before his trial was to begin.

     The fourth factor of the Barker test is prejudice to the

defendant.      Defendants have three interests which are to be

protected by a speedy trial:       1) to prevent oppressive pretrial


                                       5
incarceration:   2) to minimize anxiety and concern of the accused:
and 3) to limit possible impairment of the defense.     Heffernan, 809
P.2d at 570 (citing Barker, 407 U.S. at 532).       Although the first
interest is not at issue in this case, the court must analyze the
second two interests.     We determine that while the District Court
touched on these interests at Jenkins' hearing, it failed to make
specific findings regarding anxiety and concern to Jenkins and
possible impairment of Jenkins' defense resulting from the delay.
     To support its contention that the District Court failed to
apply the Barker test, the State cites the following District Court
statement:   "1 don't feel, quite frankly,       that the criteria in
[Barker] really have application." Conversely, Jenkins argues that
the District Court did, in fact, apply Barker.        For example, the
District Court stated:    "1 don't think that this defendant is going
to forget all of the events of that night.       I don't feel that his
defense is truly going to be hampered.      I don't feel that there has
been any--any problem under [Barker]."       We agree with the StateIs
argument that the District Court failed to apply Barker.
     Jenkins, the State and the court are understandably frustrated
by delays which have kept a misdemeanor charge from being resolved
for well over a year.    While we understand the serious difficulties
Montana courts face with respect to overcrowded dockets, we note
that in speedy trial cases "[t]he essential ingredient is orderly
expedition and not mere speed."        United States v. Marion (1991),
404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474 (citing
Smith v. United States (1959),    360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d

                                   6
1041).
     In the absence of any Barker analysis, the District Court

erred by ruling as a matter of law that too much time had passed

between the filing in District Court and the trial.      We    conclude

that the District court must consider all of the factors under the

Barker analysis and make the required findings and conclusions.

     We reverse the order granting a new trial and remand for
further proceedings consistent with this opinion.                /


                                                    Just'ice
We $oncur:
