                                                                                              04/10/2018


                                          DA 17-0561
                                                                                          Case Number: DA 17-0561

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2018 MT 86N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

ADAM KENNETH JACKSON,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 15-687
                       Honorable Leslie Halligan, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Adam Kenneth Jackson, self-represented, Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant
                       Attorney General, Helena, Montana

                       Kirsten H. Pabst, Missoula County Attorney, Missoula, Montana



                                                   Submitted on Briefs: March 21, 2018

                                                               Decided: April 10, 2018


Filed:

                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Adam Jackson (Jackson) appeals from the June 21, 2016 order of the Fourth Judicial

District Court, Missoula County denying his motion to dismiss for violation of his right to

speedy trial for failure to conduct his trial within the six-month deadline provided for in

§ 46-13-401(2), MCA. We affirm.

¶3     On May 9, 2015, Jackson was charged with driving under the influence of a

dangerous drug in violation of § 61-8-401, MCA, and a seatbelt violation under

§ 61-13-103, MCA. He pled not guilty to both misdemeanor offenses on May 11, 2015.

At the time of omnibus hearing on July 1, 2015, the State sought continuance as it had not

received Jackson’s toxicology report. As such, the Justice Court continued the omnibus to

August 5, 2015. On August 5, 2015, in response to Jackson’s request for continuance to

provide him additional time to develop photographs of the arrest scene, the Justice Court

continued the omnibus to September 2, 2015. On September 2, 2015, Jackson again

requested continuance asserting he needed additional time to obtain his booking photo.

Thus, the Justice Court continued the omnibus to October 7, 2015. Jackson failed to appear

at the omnibus on October 7, 2015, and the Justice Court set trial for December 4, 2015.
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On December 3, 2015, Jackson moved for dismissal for lack of speedy trial which

the Justice Court denied finding Jackson had waived his right to speedy trial under

§ 46-13-401, MCA, by his prior motions for continuance.

¶4     Jackson was convicted of the DUI offense and found not guilty of the seatbelt

violation at jury trial on December 4, 2015. The Justice Court imposed sentence and

Jackson timely appealed the denial of his motion to dismiss for speedy trial to the District

Court. The District Court likewise denied Jackson’s motion to dismiss determining

“Jackson waived his right to a speedy trial with his numerous continuances.” Following a

bench trial, Jackson was found guilty of the DUI offense and not guilty of the seatbelt

violation. The District Court imposed sentence and Jackson filed a timely appeal.

¶5     Jackson asserts, albeit in a non-conforming brief, the Justice Court and District

Court erred in not dismissing his case for violation of his right to a speedy trial as provided

by § 46-13-401(2), MCA. The State counters Jackson’s continuances constitute good

cause for delaying the six-month time limit set forth in § 46-13-401(2), MCA.

¶6     Jackson’s motion to dismiss for lack of speedy trial is based upon a legal

interpretation made by the District Court, we will review the court’s legal conclusions as

to whether the court correctly interpreted the law. State v. Luke, 2014 MT 22, ¶ 10, 373

Mont. 398, 321 P.3d 70.

¶7     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,

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       with prejudice, if defendant whose trial has not been postponed upon the
       defendant’s motion is not brought to trial within 6 months.

¶8     Jackson argues § 46-13-401(2), MCA, requires dismissal. We have previously

found § 46-13-401(2), MCA, mandates the dismissal of a misdemeanor charge not brought

to trial within six months only if two conditions are met: (1) the defendant has not asked

for a postponement; and (2) the State has not shown good cause for the delay. State v

Fitzgerald, 283 Mont. 162, 165, 940 P.2d 108, 110 (1997).

¶9     In this case, Jackson entered his not guilty plea on May 11, 2015. The six-month

period would have ended on November 11, 2015. The Justice Court and District Court

determined dismissal was not mandated by § 46-13-401(2), MCA, as Jackson’s requests

for continuance delayed trial and were, in essence, a waiver of his right to speedy trial.

¶10    This case is factually very similar to Fitzgerald where we held “that any pretrial

motion for continuance filed by a defendant which has the incidental effect of delaying the

trial beyond the six month time limit could be said to ‘postpone trial’ for purposes of

§ 46-13-401(2), MCA.” Fitzgerald, 283 Mont. at 166-67, 940 P.2d at 111. Fitzgerald is

controlling herein.

¶11    Dismissal of the charge against Jackson is not mandated by § 46-13-401(2), MCA.

Jackson sought two continuances that necessitated the delay of trial. The Justice Court

accommodated Jackson by granting him continuances. After these delays caused by

Jackson, the Justice Court cannot be expected to vary its schedule to guarantee the

misdemeanor charge is tried within six months. A justice court must maintain some

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flexibility over its scheduling and docket.      As such, we determine the trial date of

December 4, 2015, fell within the “good cause to the contrary” exception set forth in

§ 46-13-401(2), MCA.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶13    Affirmed.


                                                  /S/ INGRID GUSTAFSON


We concur:

/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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