Beautiful Loser

STATE v. LEWIS 05-619 2007 MT 16 1/24/2007 Justice James C. Nelson, dissenting.I dissent from the Court’s decision on both Issues One and Two. I would remand this case to the District Court, instructing the court to hold a speedy trial hearing with Lewis being represented by constitutionally effective counsel.“ ‘A defendant has no duty to bring himself to trial; the State has that duty.’ ” Tiedemann, 178 Mont. at 400, 584 P.2d at 1288 (emphasis added) (quoting Barker, 407 16

Had counsel filed such a motion, he had everything to gain for his client and nothing to lose; there was no plausible strategic or tactical advantage to be gained from not filing a no-risk motion to dismiss for lack of speedy trial.Under either Issue One or Issue Two, Lewis is entitled to have this cause remanded to the District Court for a hearing putting the prosecution to its burden to prove that the 404 days of delay attributable to the State did not prejudice Lewis’s constitutional guarantee of a speedy trial.I dissent from our contrary resolution of this appeal

./S/ JAMES C. NELSON

Justice Patricia O. Cotter joins in the dissent of Justice James C. Nelson./S/ PATRICIA COTTER