State v. Allen

?lo. 52-A21
I N THE SUPREME COURT O F THE STATE OF MONTAYA
1983
STATE O F MONTANA,
P l a i n t i f f and Respondent,
-VS-
SARY LYNN ALLEN,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e T h i r d J u d i c i a l D i s t r i c t ,
In and f o r t h e C o u n t y o f P o w e l l ,
The B o n o r a b l e Mark P . S u l l i v a n , J u d g e p r e s i d i n g .
C o u n s e l of R e c o r d :
For Appellant:
C. F. Mackay, Anaconda, N o n t a n a
For Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a ,
Montana
Ted M i z n e r , C o u n t y A t t o r n e y , Deer Lodge, Montana
-. .- - a
p --
S u b m i t t e d on B r i e f s : January 6, 1983
Decided: March 3 1 , 1 9 8 3
Filed: .$v"rM 1983
3 _t
-
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Defendant appeals a Powell County conviction of felony
escape from the state prison. Defendant contends the State
deprived him of his rights to a speedy trial because 184 days
elapsed between the time of his arrest, and the time of his
trial. We affirm.
On January 9, 1982, defendant escaped from the Montana
State Prison where he was serving a 40 year sentence for
mitigated deliberate homicide. Officials recaptured
defendant on March 15, 1982, and immediately returned him to
the prison. He made his initial appearance in the trial
court on April 1, 1982, and after the court appointed a
public defender for him, he entered a plea of "not guilty."
Trial was set for May 24, 1982.
On April 30, 1982, however, this trial date was vacated
after defendant moved to substitute the trial judge and also
filed a motion for a change of venue. The motion for a
change of venue was not heard until July 29. The record
provides no explanation for the three month delay in hearing
the motion. On July 29, the court denied the motion and set
a trial date for September 17. Four days before trial, on
September 13, defendant moved that the case be dismissed
because he was deprived of a speedy trial; two days later, on
September 15, the court denied the motion.
On the trial date defendant waived a jury trial and
submitted his case to the trial court on stipulated facts.
Defendant was found guilty and he was sentenced to four years
hard labor, to run consecutively to his present prison term.
Although the delay in this case was significant (184
days from arrest to trial and conviction), the defendant has
shown no prejudice to warrant a dismissal because of a speedy
trial violation. Since defendant's recapture he has been
kept in maximum security, but defendant has not shown that he
would have been turned into the general population at an
earlier date if he had a speedier trial. Surely one who has
e~caped can properly be considered a security risk.
Defendant has not shown that an earlier trial and conviction
on his escape charge would have resulted in an earlier
relea.se from maximum security. Defendant has shown no
prejudice and therefore is not entitled to dismissal on the
grounds he was denied a right to a speedy trial. State v.
Burtchett (1974), 165 Mont. 280, 530 P.2d 471, cert.den. 420
U.S. 974.
The judgment of the District Court is affirmed.
We Concur: