author: JUSTICE TRIEWEILER

text:
    WESTERN INDUSTRIES, INC., Plaintiff and Respondent, v. CHICAGO MINING CORP., a corporation, and BYRON H. WEIS, ROBERT L. GREINER, and ROBERT THOMLINSON, individually, jointly and severally, Defendants and Appellants.
    No. 96-157.
    Submitted on Briefs August 22, 1996.
    Decided November 7, 1996.
    53 St.Rep. 1071.
    279 Mont. 105.
    926 P.2d 737.

      For Appellants: Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena.
    For Respondent: Patrick D. Vellone and Curtis L. Clay, Vinton Nissler Allen & Vellone, P.C., Denver, Colorado; George W. Huss, Brown & Huss, P.C., Miles City.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The respondent, Western Industries, Inc. (‘Western”), filed an action against the appellants, Byron H. Weis, Robert L. Greiner, and Robert Thomlinson (collectively, “Guarantors”), in the District Court for the Fifth Judicial District in Madison County. The District Court: (1) granted summary judgment in favor of Western; (2) entered a judgment for Western in the principal amount of $232,730.04; and (3) awarded Western pre- and post-judgment interest from February 1, 1991. The Guarantors appeal the order of the District Court. We affirm and modify the judgment of the District Court, and remand the case for entry of judgment in the principal amount of $196,849.72, plus pre- and post-judgment interest from February 1, 1991.

The issues on appeal are:

1. Did the District Court err when it granted summary judgment in favor of Western?

2. Did the District Court err when it entered judgment for Western in the principal amount of $232,730.04?

3. Did the District Court err when it awarded Western pre-judgment interest from February 1, 1991?

FACTUAL BACKGROUND

Based on a contract executed in 1990, Western supplied materials and labor for Chicago Mining Corporation’s (“CMC”) tailings pond in Pony, Montana. CMC, however, failed to make payments when due, and in November 1990, Western filed a construction lien against CMC’s property in Madison County to enforce collection of the amount of $232,730.04.

Subsequently, in January 1991, the Guarantors individually executed personal guaranties, which included the following language:

[Western] is hereby authorized to collect [$232,730.04] individually from me, jointly, with any other guarantor of such debt, with the necessity of first proceeding against [CMC],

In return, Western promised that it would not institute foreclosure proceedings to enforce its construction lien until February 1, 1991.

In October 1991, Western filed an action in the District Court against CMC and the Guarantors. Specifically, Western sought the following: (1) the foreclosure of its construction lien; (2) recovery of damages for breach of contract by CMC; (3) recovery of damages for unjust enrichment by CMC; and (4) recovery from the Guarantors based on their personal guaranties.

In August 1994, Western and CMC stipulated to an entry of judgment against CMC. Pursuant to that stipulation, the District Court entered a final judgment against CMC in the principal amount of $196,849.72. Western arranged for a sheriff’s sale in aid of execution to enforce its judgment. However, in April 1995, CMC filed a petition for relief, pursuant to Chapter 11 of the Bankruptcy Code, in the U.S. Bankruptcy Court for the Northern District of Illinois.

In June 1995, Western filed a motion for summary judgment against the Guarantors. The District Court denied Western’s motion and scheduled its claims for trial during March 1996. Prior to trial, however, the U.S. Bankruptcy Court rejected CMC’s Chapter 11 plan, and converted its petition to a Chapter 7 proceeding. On that basis, Western filed a renewed motion for summary judgment, which the District Court granted in February 1996. The District Court entered judgment for Western in the principal amount of $232,730.04, plus pre-judgment interest from February 1, 1991, to February 22, 1996.

ISSUE 1

Did the District Court err when it granted summary judgment in favor of Western?

Summary judgment is governed by Rule 56(c), M.R.Civ.R, which provides, in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ....

The purpose of summary judgment is to encourage judicial economy through the elimination of any unnecessary trial. However, summary judgment is not a substitute for trial if a genuine factual controversy exists. Reaves v. Reinbold (1980), 189 Mont. 284, 288, 615 P.2d 896, 898.

It is well established that the moving party must prove that it is entitled to judgment as a matter of law. To do this, it is required to show a complete absence of any genuine factual issues. D’Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924. To defeat the motion, the nonmoving party must set forth facts which demonstrate that a genuine factual issue exists. O’Bagy v. First Interstate Bank of Missoula (1990), 241 Mont. 44, 46, 785 P.2d 190, 191. Additionally, if there is any doubt with regard to the propriety of summary judgment, it should be denied. Whitehawk v. Clark (1989), 238 Mont. 14, 18, 776 P.2d 484, 486-87.

In their brief, the Guarantors concede that there are no genuine issues of material fact; however, they claim that, based on the law of guaranties in Montana, Western is not entitled to judgment as a matter of law. Specifically, they assert the following argument:

[A]s provided by the express terms of the guarantee [sic], which says that the guarantee [sic] is governed by Montana law, Western must first proceed against CMC and, only upon the default of CMC, can it collect on the guarantees [sic]. The bankruptcy proceeding ... does not constitute a “default” of CMC.... A default... only occurs if the collateral upon which the debt is secured, the land upon which [the construction] lien is sought to be foreclosed, fails to satisfy the amount of the debt.

In Sherwood & Roberts, Inc. v. First Security Bank of Missoula (1984), 209 Mont. 402, 408, 682 P.2d 149, 152, we recognized that whether a guaranty is absolute or conditional depends upon the terms of the guaranty, and that those terms also determine the specific condition precedent to the liability of the guarantor. In this case, the guaranties contained the following provision:

[Western] is hereby authorized to collect [$232,730.04] individually from me, jointly, with any other guarantor of such debt, with the necessity of first proceeding against [CMC].

(Emphasis added.)

The express terms of the guaranties require Western to first proceed against CMC, and it is undisputed that this language establishes a condition precedent to the Guarantors’ liability. Although the guaranties do not specify what steps Western must take to satisfy the condition precedent, we conclude that, contrary to the Guarantors’ assertions, they do not require Western to proceed against CMC’s collateral, nor do they require a “default” by CMC. Rather, we conclude that the guaranties require Western to first diligently pursue a recovery against CMC. We base our conclusion on the following well-established principles of guaranty law:

The extent to which the creditor must pursue the debtor depends primarily upon the terms of the contract of guaranty. If the contract specifically details the action which the creditor may or must take, then the contract is controlling. When a conditional contract is not specific in its details, the liability of the guarantor [is] conditioned upon the exercise of diligence by the creditor to promote payment by the debtor.

38 Am. Jur. 2d 1114 Guaranty, § 108 (1968).

Western claims that it has diligently pursued a recovery from CMC, and that, therefore, it is entitled to judgment as a matter of law. In support of its claim, it asserts the following facts: (1) it filed a complaint in the District Court against CMC in 1991; (2) it obtained a stipulated judgment against CMC, which was entered by the District Court in 1995; (3) it attempted to enforce its judgment through a sheriff’s sale of CMC’s property; (4) in response to CMC’s petition for Chapter 11 relief, it filed a proof of claim in bankruptcy, actively participated in the demand for disclosures, and contacted the U.S. Trustee’s office with regard to its interest in the bankruptcy proceedings; (5) it appeared, in Chicago, at CMC’s bankruptcy hearing; (6) it filed a brief in support of the U.S. Trustee’s motion for conversion of CMC’s case from a Chapter 11 to a Chapter 7 proceeding; (7) it appeared in Chicago at the hearing to consider the motion for conversion, which was eventually granted; (8) it took depositions of two of CMC’s principals and two of the Guarantors; and (9) it has been in contact with the U.S. Bankruptcy Trustee in Chicago.

The Guarantors, on the other hand, have not offered evidence or even attempted to establish that Western has failed to diligently pursue a recovery from CMC.

Based on the uncontroverted evidence, we conclude that Western has sufficiently satisfied the condition precedent of “first proceeding against [CMC].”

We conclude that there are no genuine issues of material fact, and that Western is entitled to judgment as a matter of law. Accordingly, we hold that the District Court did not err when it granted summary judgment in favor of Western.

ISSUE 2 and ISSUE 3

Did the District Court err when it entered judgment for Western in the principal amount of $232,730.04?

Did the District Court err when it awarded Western pre-judgment interest from February 1,1991?

When we review a district court’s conclusions of law, the standard of review is whether those conclusions are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

When the District Court granted Western’s renewed motion for summary judgment, it entered a final judgment “in the principal sum of $232,730.04 plus pre- and post-judgment interest... as of February 1, 1991 to February 22, 1996 ....” The Guarantors contend that the District Court erred when it entered this judgment, and that, therefore, it must be vacated. Specifically, they assert that the judgment should be reduced to the principal amount of $196,849.72, and that pre-judgment interest should be calculated only from August 31, 1994. The Guarantors guaranteed payment as of February 1, 1991. However, the stipulated judgment was not entered until August 31, 1994.

THE PRINCIPAL AMOUNT OF $232,730.04

Section 28-11-201, MCA, states:

Obligation of guarantor not to exceed that of principal. The obligation of a guarantor must be neither larger in amount nor in other respects more burdensome than that of the principal, and if in its terms it exceeds it, it is reducible in proportion to the principal obligation.

CMC (the principal debtor) and Western entered into a stipulated judgment in the amount of $196,849.72. This stipulated judgment conclusively established CMC’s obligation. Therefore, pursuant to § 28-11-201, MCA, the Guarantors’ obligation cannot exceed the amount to which CMC and Western stipulated.

Accordingly, we hold that the District Court erred when it entered judgment for Western in the principal amount of $232,730.04.

PRE-JUDGMENT INTEREST FROM FEBRUARY 1, 1991

Section 27-1-211, MCA, states, in relevant part:

Right to Interest. Every person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day is entitled also to recover interest thereon from that day ....

Pursuant to the express terms of the guaranties, Western’s right to recover from the Guarantors vested on February 1,1991, the date on which CMC failed to make the payment that was then due, and the date by which the Guarantors guaranteed payment. The amount was also capable of being made certain by calculation on that date. It was simply the difference between the amount set forth in the written guaranties, and any amount paid.

Accordingly, we hold that the District Court did not err when it awarded Western pre-judgment interest from February 1, 1991.

We affirm and modify the judgment of the District Court, and remand the case for entry of judgment in the principal amount of $196,849.72, plus pre-judgment interest from February 1,1991, and post-judgment interest to the date on which the judgment is satisfied.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY and ERDMANN concur.

      . Pursuant to the parties’ original contract, CMC owed Western $232,730.04. Western’s complaint against CMC and the Guarantors, however, sought only $203,999.50. The reduced amount reflects the fact that Western had been paid some of the money owed to it prior to the time it filed its complaint in the District Court.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MAX SMALL, Defendant and Appellant.
    No. 96-176.
    Submitted on Briefs October 17, 1996.
    Decided November 7, 1996.
    53 St.Rep. 1074.
    279 Mont. 113.
    926 P.2d 1376.

      For Appellant: James L. Vogel, Hardin.
    For Respondent: Joseph P. Mazurek, Attorney General, Micheál Wellenstein, Assistant Attorney General, Helena; Christine Cooke, Big Horn County Attorney, Hardin.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Max Small (Small) appeals the decision of the Thirteenth Judicial District Court, Big Horn County, denying his motion to dismiss a charge of felony assault based on the lack of a speedy trial. We reverse and remand with instructions.

On July 25,1994, the State charged Small with one count of felony assault. Small pled not guilty to the charge at his arraignment and was released on his own recognizance. The District Court scheduled a trial in the matter for November 14, 1994. However, on November 14, 1994, the State moved to continue the trial date on the grounds that the parties had worked out an agreement in the case hut that the necessary paperwork had not yet been completed.

On June 27,1995, the District Court reset the trial for August 15, 1995,but the trial didnottake place on that date. OnAugust25,1995, the District Court rescheduled the trial for November 7, 1995. On September 7,1995, the District Court again vacated the existing trial date and reset the trial, this time for December 5, 1995.

On November 30,1995, Small moved to dismiss the charge for lack of a speedy trial. The issue was briefed and argued before the District Court, which denied the motion. At that time, Small agreed to enter into apleabargain by which he would plead guilty to a reduced charge of misdemeanor assault. Until this plea bargain, no agreement regarding the disposition of the case was ever reached by the parties although extensive discussions regarding the matter apparently took place. When accepting the plea bargain, Small specifically reserved his right to appeal the ruling on his motion to dismiss for lack of a speedy trial. It is that issue we decide today.

The sole issue raised on appeal is whether the District Court erred by denying Small’s motion to dismiss for lack of a speedy trial.

The right to a speedy trial in a criminal prosecution is guaranteed by both the Sixth Amendment to the United States Constitution and by Article II, Section 24 of the Montana Constitution. State v. Hagberg (1996), 277 Mont. 33, 920 P.2d 86, 91 (citing State v. Thompson (1993), 263 Mont. 17, 31, 865 P.2d 1125, 1134). A speedy trial claim is a question of constitutional law, and we review questions of law de novo to determine whether the court’s interpretation of the law is correct. Hagberg, 920 P.2d at 91 (citing State v. Cassidy (1978), 176 Mont. 385, 388, 578 P.2d 735, 737; Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; and Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

The United States Supreme Court has established a four-part test to determine whether a defendant’s right to a speedy trial has been violated. See Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. This Court adopted the Barker test in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64. As this Court has noted repeatedly, the Barker test requires the trial court and the appellate court to consider: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the defendant. See, generally, State v. Gould (1995), 273 Mont. 207, 902 P.2d 532; State v. Collier (1996), [277 Mont. 46], 919 P.2d 376; Hagberg, 920 P.2d 86; State v. Atkins (1996), 277 Mont. 103], 920 P.2d 481; and State v. Tweedy (1996), [277 Mont. 313], 922 P.2d 1134.

1. Length of delay.

If the length of the delay is not long enough to be presumptively prejudicial, the fall speedy trial analysis is not triggered and the court need not consider the remaining three components of the Barker test. If, however, the delay is of such duration that is presumptively prejudicial, the burden shifts to the State to rebut the presumption of prejudice by providing a reasonable explanation for the delay and by showing the defendant was not prejudiced thereby. Atkins, 920 P.2d at 483 (citations omitted).

In this case, the length of the delay from Small’s arrest to his ultimate trial date was 511 days. The State concedes that this is a sufficient amount of time to trigger the full speedy trial analysis and to give rise to a rebuttable presumption that the delay prejudiced Small.

2. The reason for the delay.

Under the second factor of the Barker test, the reviewing court must allocate responsibility for the delay between the defendant and the State. Since the 511 days in this case supports a finding that the delay was presumptively prejudicial, the burden shifts to the State to rebut that presumption by showing a reasonable explanation for the delay and by demonstrating that the defendant was not prejudiced thereby. Tweedy, 922 P.2d at 1138.

The first delay, of 125 days, was the span of time between Small’s arrest and the initial trial date set by the District Court. The State concedes that it is responsible for this first delay, but contends the delay was institutional in nature, generated only by the District Court’s calendar and its determination of when the trial could be held. We agree. Institutional delay is weighed less heavily against the State than intentional delay. Tweedy, 922 P.2d at 1138 (citing State v. Weeks (1995), 270 Mont. 63, 891 P.2d 477). Obviously, however, such delay cannot be blamed on the defendant.

The second delay, of 274 days, occurred when the State moved to vacate the first trial date and did not reschedule the trial for over nine months. The State, however, contends that this delay should not be wholly apportioned to it, but that Small should be considered responsible for some portion of this time.

The State says it vacated the original trial date because “the parties [had] reached an agreement but [had] yet to finalize the paperwork.” Small, too, acknowledges that a deferred prosecution agreement was discussed. However, no such agreement was ever finalized.

The State raises a similar argument for the third and fourth delays (112 days collectively). It contends that Small must be allotted some part if these delays as well because they was caused, at least in part, by the State’s understanding that he would come in during that time and plead to a reduced charge of misdemeanor assault in order to dispose of the case. The State contends that this arrangement "gave the State the impression that there would be no trial and thus no speedy trial problem.” The State further contends that Small must be held accountable for at least part of these delays because the State’s counsel “was under the impression Small was going to plead guilty to the misdemeanor charge of domestic abuse and he simply failed to do so month after month.” Again, no such agreement was ever concluded.

Essentially, the State argues that ongoing negotiations, whether they be for deferred prosecution or a plea bargain, somehow relieve it of its duty to bring defendants to trial in a timely fashion. However, the State fails to cite a single case which would support this proposition. In fact, to rule as the State urges would be to compel a criminal defendant to try to choose the lesser of two evils. He could pursue negotiations with the State at the expense of his constitutional right to a speedy trial, or he could preserve the right to a speedy trial by refusing to engage in negotiations. The law does not require such a choice.

This Court has stated that “[i]t has never been incumbent upon a defendant to assist the State in his own prosecution.” State v. Fuller (1996), 276 Mont. 155, 166, 915 P.2d 809, 816. On the contrary, “as a general rule, it is the State’s duty to ensure that a criminal case is diligently prosecuted; the defendant has no duty to bring himself to trial.” Tweedy, 922 P.2d at 1137. When, as in this case, a plea agreement is not completed, the State retains the duty to proceed as it sees fits, without the assistance of the defendant. If, instead, the State allows the case to languish, the defendant will not be faulted for it. Therefore, all of the second, third and fourth delays also must be charged to the State.

The State, however, also argues that even if it is deemed responsible for the second, third, and fourth delays, they should nevertheless be considered institutional delay and, therefore, weigh less heavily upon the State. While the third and fourth delays may be construed as institutional, the second cannot.

Institutional delay is delay which is caused by circumstances largely beyond the control of either the defendant or the State. It most often will be caused by crowded court dockets and the corresponding difficulties in setting trial dates. Tweedy, 922 P.2d at 1138. The second delay in this case was not caused by such unavoidable scheduling problems. Instead, the State relied on a proposed agreement which never came to fruition, and simply allowed the case to rest for in excess of270 days. We will not construe such inaction as institutional delay. The third and fourth delays, however, were caused when the District Court, apparently of its own initiative, twice rescheduled the trial. These delays will therefore be deemed institutional.

In sum, of the overall delay of 511 days, 274 days are charged to the State outright and 237 are charged to the State but qualified as institutional in nature. None of the delay is attributable to Small.

3. The assertion of the right.

The third Barker factor requires that a defendant assert the right to a speedy trial. “[I]f the defendant has moved to dismiss before trial, he has fulfilled the requirement of asserting his constitutional right to a speedy trial.” Tweedy, 922 P.2d at 1139 (quoting State v. Britton (1984), 213 Mont. 155, 161, 689 P.2d 1256, 1260). Here, Small moved to dismiss before the matter was brought to trial and thereby asserted his right to a speedy trial in a timely fashion.

While acknowledging that case law supports Small’s assertion that he fulfilled the third Barker factor by moving to dismiss before trial, the State nevertheless argues that his assertion of the right was not timely because “Small’s pursuit of the plea agreement and his delays in entering a plea show that he was not interested in a speedy trial.” Aside from being directly contradicted by the relevant case law, this assertion is merely a reargument of the State’s contention that Small was somehow required to choose between pursuing a possible plea agreement and preserving his right to a speedy trial, a contention this Court expressly rejects.

4. Prejudice to the defendant.

The fourth factor of the Barker test is whether the defendant was prejudiced by the delay. In determining this, the evaluating court must assess the impact of the delay on the following interests: (1) the prevention of oppressive pretrial incarceration; (2) the minimization of the defendant’s anxiety and concern; and (3) the limitation of impairment of the defense. Atkins, 920 P.2d at 483 (citing Gould, 902 P.2d at 538).

In this case, it is conceded that Small suffered no anxiety attributable to incarceration simply because he was never incarcerated for any length of time. Nor did he credibly allege that the delay had impaired his ability to present an effective defense.

Small does allege, however, that the eighteen-month delay has caused him to suffer substantial anxiety and concern. In particular, Small points out that the victim in this case is his wife and that the witness against him is his son. Small and his wife have reconciled in the time since the assault, and Small claims the prospect that his wife and son ultimately may have to testify against him has impaired their collective ability to function as a family again. Further, Small claims that the pending felony charges have made him a subject of ridicule in his community and have adversely affected his business.

The State argues that these allegations hardly demonstrate the prejudice necessary to justify dismissing the charge. The State also points out that this Court has noted that “a certain amount of anxiety and concern is inherent in being charged with a crime and that the existence of anxiety and emotional distress is notoriously difficult to prove.” State v. Thompson (1993), 263 Mont. 17, 33, 865 P.2d 1125, 1135.

The prejudice asserted was recognized by the District Court, but it nevertheless agreed that the prejudice did not rise to a level sufficient to grant Small’s motion to dismiss. This determination, however, reflects only consideration of the fourth Barker factor. Nowhere in the transcript or in the District Court’s order is there any indication that the other three mandated Barker factors were also considered. In particular, the District Court did not allocate the delay between Small and the State. Nor, apparently, did it factor in the State’s responsibility for causing the delay before making its decision.

The delay in this case was inordinately long (511 days). This entire delay must be attributed to the State, and less than half of it may be considered institutional in nature. Small asserted prejudice which the State could not contravene. After considering all the Barker factors, we hold that the District Court erred by refusing to dismiss the charge for lack of a speedy trial.

The judgment of the District Court is reversed, and the case is remanded with orders that the charge against the defendant be dismissed.

JUSTICES NELSON, ERDMANN, LEAPHART and GRAY concur.


text:
    DIME INSURANCE AGENCY, THOMAS D. BERRY, Plaintiffs and Respondents, v. SCOTT JOHNSON/ISC DISTRIBUTORS, Defendants and Appellants.
    No. 96-287.
    Submitted on Briefs August 22, 1996.
    Decided November 7, 1996.
    53 St.Rep. 1078.
    279 Mont. 121.
    926 P.2d 733.

      For Appellants: Thane P. Johnson, Werner, Epstein & Johnson, Cut Bank.
    For Respondents: Joseph T, Swindlehurst, Huppert & Swindlehurst, Livingston.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On January 23, 1996, the Gallatin County Justice Court entered judgment in the amount of $2809 in favor of the plaintiff, Dime Insurance Agency, against the defendant, ISC Distributors. ISC filed a notice of appeal to the District Court. However, Dime Insurance moved to dismiss the appeal because the undertaking on appeal was not filed within thirty days of the date on which judgment was rendered in Justice Court. The District Court granted Dime Insurance’s motion. ISC appeals the order of the District Court which dismissed its appeal. We reverse the order of the District Court and remand to that court for consideration of the merits of ISC’s appeal.

The issue on appeal is whether the District Court erred when it dismissed ISC’s appeal for failure to file an undertaking within thirty days of the date on which judgment was rendered in Justice Court.

FACTUAL BACKGROUND

In 1995, Dime Insurance Agency brought suit against ISC Distributors in Justice Court in Gallatin County to recover insurance premiums due for a business insurance policy. Following a hearing on January 19, 1996, the Justice Court entered a judgment in favor of Dime Insurance Company in the amount of $2809.

On February 1,1996, ISC filed a notice of appeal in Justice Court. Within one week, the Justice Court transmitted its record to the District Court for the Eighteenth Judicial District in Gallatin County. On March 7, 1996, ISC deposited an undertaking on appeal in the amount of $2809 with the Clerk of the District Court.

On March 14, 1996, Dime Insurance moved to dismiss ISC’s appeal. Dime Insurance maintained that ISC’s appeal was not properly perfected because, pursuant to § 25-33-201, MCA, ISC had not filed an undertaking on appeal within thirty days from the date on which judgment was rendered in Justice Court. On March 29, 1996, the District Court granted Dime Insurance’s motion and dismissed ISC’s appeal.

DISCUSSION

Did the District Court err when it dismissed ISC’s appeal for failure to file an undertaking within thirty days of the date on which judgment was rendered in Justice Court?

We review a district court’s grant or denial of a motion to dismiss to determine whether the court was correct. Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762.

A party may appeal from a civil action injustice court at any time within thirty days after the judgment is rendered. Section 25-33-102, MCA. The procedure for appealing a justice court judgment is set forth in § 25-33-103, MCA, which provides:

The appeal is taken by serving a copy of the notice of appeal on the adverse party or his attorney and by filing the original notice of appeal with the justice or judge. The order of serving and filing is immaterial.

In addition, when the aggrieved party appeals a money judgment from the justice court, that party must file an undertaking, with two or more sureties, in a sum equal to twice the amount of the judgment, or a deposit of money in the sum of the judgment plus $300. Sections 25-33-201(1) and -205, MCA. The undertaking ensures that the appellant will pay the amount of the judgment appealed from together with all costs if the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the district court. Section 25-33-201(1), MCA. See also State ex rel. Gregory v. District Court (1930), 86 Mont. 396, 399, 284 P. 537, 538. Section 25-33-207, MCA, provides that an appeal shall not be dismissed

for insufficiency of the undertaking thereon or for any defect or irregularity therein if a good and sufficient undertaking be filed in the district court at or before the hearing of the motion to dismiss the appeal, which undertaking must be approved by the district judge.

In its order dismissing ISC’s appeal, the District Court interpreted these statutes to require an appellant to file an undertaking within thirty days of the judgment rendered injustice court. In this case, the court held that since judgment was rendered in Justice Court on January 23, 1996, and the Clerk of Court deposited ISC’s check for the undertaking on March 7,1996, “[u]nder no possible time calculations was the undertaking filed within 30 days of the justice court judgment.” The court therefore held that it did not have jurisdiction to hear the appeal and granted Dime Insurance’s motion to dismiss.

The District Court’s conclusion was based on Goldsmith v. Lane (1987), 226 Mont. 341, 735 P.2d 306. In Goldsmith, this Court held that a party’s failure to file an undertaking on appeal from a justice court within thirty days of the justice court’s judgment prevented the appeal from being perfected and deprived the district court of jurisdiction to entertain the appeal. Goldsmith, 226 Mont. at 343-44, 735 P.2d at 308. Specifically, this Court held that “an appeal is not effectuated for any purpose unless an undertaking is filed in accordance with the statutory requirements of Section 25-33-201, MCA.” Goldsmith, 226 Mont. at 343, 735 P.2d at 308.

Section 25-33-201, MCA, does not, however, require that an undertaking be filed within thirty days of the justice court’s judgment in order to perfect the appeal. That section provides only that:

(1) Except as provided in subsection (4), an appeal from a justice’s or city court is not effectual for any purpose unless an undertaking he filed, with two or more sureties, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money. The undertaking must be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from and all costs if the appeal be withdrawn or dismissed or the amount of any judgment and all costs that may be recovered against him in the action in the district court.
(4) When the appealing party is determined by the court to be indigent, the district court shall waive the undertaking requirements of this section.

(Emphasis added.) Section 25-33-103, MCA, which sets forth the requirements for taking an appeal, requires only that an aggrieved party serve a copy of the notice of appeal on the adverse party or his attorney and file the original notice of appeal with the justice court within a period of thirty days. There is no requirement, pursuant to either § 25-33-103 or § 25-33-201, MCA, that the undertaking be filed within that thirty-day period in order to preserve the parties’ right to appeal.

This Court has, in fact, held that notice of an appeal and the filing of an undertaking occur in two different stages and that the filing of an undertaking need not occur within the statutory period prescribed for taking an appeal. In Thien v. Wiltse (1914), 49 Mont. 189, 192-93, 141 P. 146, 147, we reviewed nearly identical statutory provisions, and stated:

The Code provisions touching appeals from justices’ courts are to the effect, that an appeal lies from a judgment, and from a judgment only; it is taken by filing a notice of appeal with the justice and serving a copy thereof on the adverse party or his attorney; it is not effectual for any purpose, unless an undertaking is filed; and it must be tried anew in the district court. It is not without significance that, -under these provisions, an appeal from justices’ courts presents three defined stages: (1) The taking which occurs when notice of the proper character is properly filed and served .... (2) The perfecting or rendering effectual which occurs upon the filing of the undertaking. That this is no part of the taking but presupposes the taking, and is a distinct step beyond it, is clear from the fact that the appeal may be preserved, notwithstanding the undertaking is defective or irregular, if a good one be substituted at or before the hearing of the motion to dismiss .... The distinction between the taking and the perfecting of an appeal under statutes similar to our own is clearly recognized by the supreme court of California: “It is contended, however, that the appeal in this case was not taken within sixty days after the rendition of the judgment, because no undertaking on appeal was filed within that period of time. An appeal is taken when a notice of appeal is served and filed. The filing of an undertaking perfects an appeal, but it is not part of the taking in the statutory sense.” (Perkins v. Cooper, 3 Cal. Unrep. 279, 24 Pac. 377.) (3) The hearing which occurs when the trial de novo is had in the district court.

(Emphasis added, citations omitted.)

In Goldsmith v. Lane, this Court neither addressed nor overruled the language in Thien. Instead, the Court relied on an earlier Montana case, Pirrie v. Moule (1905), 33 Mont. 1, 81 P. 390, to reach its conclusion that an undertaking not filed within the statutory period for the taking of an appeal is void and divests a district court of jurisdiction. Specifically, the Court cited Pirrie for the proposition that

[w]hen the undertaking is insufficient a new one may be filed, and the appeal, or appeals, be saved; but when the one filed is void, the court has not obtained jurisdiction and the appeal must fail.

Goldsmith, 226 Mont. at 343, 735 P.2d at 308 (quoting Pirrie, 33 Mont. at 6, 81 P. at 392). In Pirrie, however, the Court was asked to determine whether an ambiguous undertaking was void, not whether an untimely undertaking was void. Furthermore, had the Court been asked to determine the latter question, it would have been bound by § 1724 of the Montana Code of Civil Procedure (1895), which provided:

An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk as herein provided, or the undertaking be waived by the adverse party in writing.

(Emphasis added.) Although the language of § 1724 did provide that an undertaking not filed within five days after service of the notice was void, that language is not duplicated in either § 25-33-103 or § 25-33-201, MCA, on which this Court relied in Goldsmith. Therefore, this Court’s reliance in Goldsmith on Pirrie was misplaced. Because Pirrie is inapplicable, and because neither § 25-33-103 nor § 25-33-201, MCA, mandates that an undertaking be filed within thirty days of the justice court’s judgment, we hold that there is no such requirement, and on that basis, we reverse our earlier opinion in Goldsmith v. Lane (1987), 226 Mont. 341, 735 P.2d 306.

Although §§ 25-33-103 and -201, MCA, do not set a period within which an undertaking must be filed, § 25-33-207, MCA, provides that an insufficient, defective, or irregular undertaking may be cured if a good and sufficient undertaking is filed in the district court “at or before the hearing of the motion to dismiss the appeal.” On the basis of § 25-33-207, MCA, we hold that, in order to perfect an appeal from justice court, a valid undertaking need only be filed at or before the hearing on the motion to dismiss. Therefore, as long as an aggrieved party takes an appeal within thirty days of the justice court’s judgment, pursuant to §§ 25-33-102 and -103, MCA, and files an undertaking at or prior to a hearing on a motion to dismiss for failure to file an undertaking, pursuant to §§ 25-33-201 and -207, MCA, that appeal is valid and the district court has jurisdiction to entertain the appeal.

In this case, the Justice Court rendered its judgment on January 23, 1996. ISC filed a notice of appeal on February 1, 1996, within thirty days of the judgment of the Justice Court. In addition, ISC deposited an undertaking on March 7,1996, prior to Dime Insurance Agency’s motion to dismiss and prior to a hearing on that motion. Because ISC instituted its appeal with thirty days, pursuant to §§ 25-33-102 and -103, MCA, and filed its undertaking prior to the District Court’s hearing on Dime Insurance’s motion to dismiss, we hold that ISC’s appeal was perfected and the District Court had jurisdiction to hear the appeal. We therefore hold that the District Court erred when it dismissed ISC’s appeal on the ground that ISC had failed to file its undertaking within thirty days of the Justice Court’s judgment. We remand this case to the District Court for consideration of the merits of ISC’s appeal.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, GRAY and LEAPHART concur.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT BRUCE LANE, Defendant and Appellant.
    No. 95-046.
    Submitted on Briefs June 13, 1996.
    Decided November 14, 1996.
    53 St.Rep. 1082.
    279 Mont. 128.
    927 P.2d 989.

      For Appellant: Patrick D. Sherlock, Sherlock and Nardi, Kalispell.
    For Respondent: Joseph P. Mazurek, Attorney General, Barbara C. Harris, Assistant Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Valerie D. Wilson, Deputy Flathead County Attorney, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

Robert Bruce Lane (Robert) appeals his conviction in the District Court of the Eleventh Judicial District, Flathead County, of one count of forgery, a felony.

We address the following issues on appeal:

1. Did the District Court err in denying Robert’s motion to dismiss for lack of a speedy trial?

2. Was Robert’s right to confront witnesses violated by the procedure used by the State in interviewing witnesses prior to trial?

3. Was there sufficient evidence to support the jury’s verdict finding Robert guilty of one count of forgery?

Factual and Procedural Background

On April 14, 1994, Robert was charged by complaint with two counts of forgery pursuant to § 45-6-325, MCA. The charges stemmed from two incidents where Robert allegedly forged his wife’s signature.

Robert and Sydney Island (Sydney) were married on June 18,1992. Shortly after their marriage, Robert and Sydney obtained a residential loan from the Whitefish Credit Union. On May 21, 1993, Robert and Sydney obtained a second loan from the credit union, to help Robert start a home inspection business.

The first count of forgery related to a third loan with the credit union. On November 4,1993, Robert went to Whitefish Credit Union to obtain a loan ostensibly to pay off property taxes on the family home and to pay off the balance of the second loan. Robert took the loan application home to get Sydney’s signature. When the loan application was returned to the credit union, it contained the signature “Sydney I. Lane.”

The amount of this third loan was $3,557.60. After paying off the second loan and the costs of obtaining this third loan, Robert received $1,529.99. Sydney later stated that she was unaware of this loan and that she did not sign the loan application. She contended that Robert forged her signature on the loan application.

The second count of forgery related to a draft issued by AVCO Financial Services (AVCO) to “Sydney L. Island.” Sydney had previously purchased appliances for the household through AVCO. It is AVCO’s policy to periodically send “express checks” to customers in good standing. These checks are accompanied by a letter explaining the terms of the loan undertaken when the person to whom the check was made out cashes the check.

AVCO sent one such check for $1,500 to Sydney in May 1993. This check was cashed at the Whitefish Credit Union on May 28, 1993. A deposit of $400 was made to Robert and Sydney’s joint account at the credit union and $1,100 was given to Robert in cash. Sydney later claimed that she had never seen the AVCO check and that she had no knowledge of the loan until the end of March 1994, when she found, in a drawer in the garage, notices of late payments from AVCO. Sydney claimed that even though her name appeared on the back of the AVCO check as the endorser, she did not sign the check, nor did she authorize anyone else to sign it on her behalf. She claimed that Robert forged her signature on the check.

Robert was arrested on the forgery charges on April 15, 1994. A preliminary hearing was set for May 11,1994, and the case was bound over for trial. Robert was arraigned on June 30,1994, at which time he pleaded not guiliy. At his arraignment, the District Court set the omnibus hearing for August 11,1994, and the trial for October 11,1994. Robert did not object when the court set October 11, as the trial date.

On October 6, 1994, the District Court continued the trial for one week. Robert subsequently filed a motion to dismiss for lack of a speedy trial. This motion was heard and denied on October 12,1994. Atrial by jury was held on October 18 and 19, 1994, and Robert was found guilty of one count of forgery, a felony, relating to the AVCO check. At the November 29, 1994 sentencing hearing, Robert was sentenced to twenty years in Montana State Prison with five years suspended.

Issue 1

Did the District Court err in denying Robert’s motion to dismiss for lack of a speedy trial?

Robert was arrested on April 15, 1994, and incarcerated until his trial on October 18, 1994, a period of 186 days. On October 11, 1994, he filed a motion to dismiss for lack of a speedy trial which was subsequently denied by the District Court.

The Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee a criminal defendant the right to a speedy trial. Whether that right has been violated is determined by a four-part test set out in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17, and adopted by this Court in State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist. (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64.

This test requires a balancing of the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right by the defendant; and (4) prejudice to the defendant. State v. Collier (1996), [277 Mont. 46], 919 P.2d 376, 381-82 (citing State v. Matthews (1995), 271 Mont. 24, 27-28, 894 P.2d 285, 287). All four factors are weighed by considering the facts and circumstances of each case; no one factor is determinative. Collier, 919 P.2d at 382.

The first factor, length of the delay, triggers further inquiry into the remaining three factors. It is not necessary to consider the remaining factors unless the length of the delay is presumptively prejudicial. Collier, 919 P.2d at 382 (citing State v. Eklund (1994), 264 Mont. 420, 424, 872 P.2d 323, 326). When considering the length of the delay, no regard is given to which party caused the delay. Collier, 919 P.2d at 382.

Robert was arrested on April 15, 1994, and trial was held on October 18,1994, a delay of 186 days. We have previously stated that a delay of over 200 days will trigger further analysis. Collier, 919 P.2d at 382. However, a lesser period also may be presumptively prejudicial depending on the facts of each case. State v. Stewart (1994), 266 Mont. 525, 529, 881 P.2d 629, 632 (citing State v. Bartnes (1988), 234 Mont. 522, 527, 764 P.2d 1271, 1275). Indeed, in Bartnes, we determined that a 175-day delay, when combined with the circumstances of the case, necessitated review of the remaining factors. Here, while the 186-day delay is not presumptively prejudicial on a stand-alone basis we conclude that it is presumptively prejudicial when combined with the fact that Lane was incarcerated for the entire period. Thus, we must consider the remaining three factors. Because of the presumption of prejudice, the State has the burden of providing a reasonable explanation for the delay, and for showing that Lane was not prejudiced by the delay. Matthews, 894 P.2d at 287.

The second factor, reason for the delay, requires us to allocate portions of the overall delay to the party responsible for causing that particular delay. In this case, neither Robert nor the State moved to continue the trial; the only continuance was at the behest of the District Court. Robert concedes that the 186-day delay in this case was institutional delay caused by the court’s case load. Institutional delay, though charged against the State, weighs less heavily than intentional delay. State v. Gould (1995), 273 Mont. 207, 216, 902 P.2d 532, 538.

The third factor, assertion of the right by the defendant, was satisfied when Robert moved to dismiss on speedy trial grounds prior to trial. However, by filing his motion to dismiss only one week before trial was to commence, Robert exhibited a lack of actual interest which should be considered in balancing the Barker factors. State v. Thompson (1993), 263 Mont. 17, 32-33, 865 P.2d 1125, 1135 (citing State v. Mooney (1991), 248 Mont. 115, 119, 809 P.2d 591, 594). As we pointed out in Thompson, a defendant’s failure to object to a trial date at the omnibus hearing must be considered in the defendant’s later assertion of a claim of denial of a speedy trial. Thompson, 865 P.2d at 1135. In the present case, Robert did not object to the October 11th trial date prior to filing his motion to dismiss.

The fourth factor, prejudice to the defendant, is analyzed by assessing three interests which the right to a speedy trial was designed to protect: (1) prevention of oppressive pretrial incarceration; (2) minimization of the defendant’s anxiety and concern; and (3) avoidance of impairment of the defense. The last of these interests is the most critical. Collier, 919 P.2d at 383.

First, Robert was incarcerated for the full 186 days. However, his incarceration was in part a result of charges in Jefferson County. In fact, Robert was held in the Jefferson County Jail awaiting trial on charges there until a few days before his trial on the Flathead County charges. This Court has previously held that where a defendant is incarcerated on separate charges, there is no prejudice resulting from pretrial incarceration in the case at hand. Gould, 902 P.2d at 539 (citing State v. Hembd (1992), 254 Mont. 407, 414, 838 P.2d 412, 416). Under these circumstances, Robert’s incarceration was neither oppressive nor prejudicial.

Second, Robert contends that knowing he had lost his job and thus could not continue monthly payments on his bills was cause for him to suffer from anxiety and concern. However, this Court should not presume prejudice in the absence of anxiety and concern which exceeds that inherent in being charged with a crime. State v. Moore (1994), 268 Mont. 20, 69, 885 P.2d 457, 487-88 (overruled on other grounds.) Here, Robert would have been in custody in any event because of the Jefferson County charges. His inability to pay his bills is not sufficient evidence of anxiety and concern to be prejudicial to his defense.

Third, Robert contends his defense was impaired by the delay in this case because the witnesses who testified “could” have been affected by the delay. However, Robert presents no evidence to support his assertions that the witnesses’ memories have dimmed or that evidence was lost.

Therefore, weighing the facts and circumstances in this case with the factors set forth in Barker establishes that Robert did not suffer any prejudice in his defense from the delay. Accordingly, we hold that Robert’s right to a speedy trial was not violated and the District Court did not err in denying his motion to dismiss on speedy trial grounds.

Issue 2

Was Robert’s right to confront witnesses violated by the procedure used by the State in interviewing witnesses prior to trial?

On October 12, 1994, following the District Court’s denial of Robert’s motion to dismiss, the prosecutor and defense counsel discussed witness interviews. The prosecutor agreed to have the witnesses available for interviews at the prosecutor’s office. Arrangements for the times of these interviews was set out in a letter, dated October 13, 1994, from the prosecutor to defense counsel. The letter stated that three of the witnesses were available the following day for interviews and the fourth witness was available the following Monday.

When defense counsel arrived for the interviews, he had with him a court reporter. He asserted that the interviews were actually depositions and requested that Robert be allowed to be present. The prosecutor refused to have Robert brought from the jail for the interviews.

Robert contends that it was error for the State not to ensure his presence at the witness interviews. He argues that under § 46-15-202(5), MCA, a defendant held in custody must be allowed to be present at all depositions unless he has waived his right in writing.

The pretrial interviews in this case were not depositions as contemplated by Title 46, Chapter 15, part 2, of the Montana Code. Section 46-15-201, MCA, provides in pertinent part:

When depositions may be taken. (1) In district or municipal court cases, a deposition may be taken if it appears that a prospective witness:
(a) is likely to be either unable to attend or otherwise prevented from attending a trial or hearing;
(b) is likely to be absent from the state at the time of the trial or hearing; or
(c) is unwilling to provide relevant information to a requesting party and the witness’s testimony is material and necessary in order to prevent a failure of justice. The court shall, upon motion of any party and proper notice, order that the testimony of the witness be taken by deposition and that any designated books, papers, documents, or tangible objects, not privileged, be introduced at the time the deposition is taken.

None of the situations envisioned by this statute applied in the case before us. There was no showing on the record that a deposition was authorized because the prospective witness was unable to attend or otherwise prevented from attending the trial, was likely to be absent from the state at the time of the trial, or was unwilling to provide relevant information to defense counsel. Thus, notwithstanding that defense counsel brought a court reporter to record the proceedings, the pretrial interviews were merely interviews and not depositions. Furthermore, this Court has previously stated that:

[T]he right of a defendant to confront his accusers is not equivalent to a constitutionally compelled rule of pretrial discovery. Rather, the right of confrontation is a trial right, guaranteeing an opportunity for effective cross-examination. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.E.2d 40 (1987).

State v. Reynolds (1990), 243 Mont. 1, 7-8, 792 P.2d 1111, 1115 (quoting People v. Exline (Colo.App. 1988), 775 P.2d 48, 49).

In addition, even if one of the situations contemplated by § 46-15-201(1), MCA, were applicable in this case, there was no motion made to the court requesting that depositions be taken, nor was there any order of the court that the testimony be taken by deposition. Section 46-15-201(l)(c), MCA. Moreover, defense counsel did not provide written notice of the time and place for taking the “depositions” as set forth in § 46-15-202(1), MCA, nor did defense counsel notify the officer having custody of Robert of the time and place set for the “depositions” as required under § 46-15-202(5), MCA.

Accordingly, we hold that Robert had no legal right to be present at the pretrial interviews and that his constitutional right to confront witnesses was not violated.

Issue 3

Was there sufficient evidence to support the jury’s verdict finding Robert guilty of one count of forgery?

Robert contends that the verdicts on the two counts of forgery are inconsistent and that, as a matter of law, since he was found not guilty on Count I, he must also be found not guilty on Count II, as the proof for both counts is the same. Robert also contends that there was no evidence presented at trial that the AVCO draft was signed by him or that he intended to defraud AVCO. He argues that the only testimony against him is that of Sydney who filed a petition to dissolve their marriage shortly after accusing him of the forgeries.

This Court reviews a claim of sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Leyba (1996), 276 Mont. 45, 52, 915 P.2d 794, 798 (citing State v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318).

Robert’s argument that the verdicts are inconsistent because the proof as to Count I is the same as the proof as to Count II, is without merit. Count I involved the loan application presented to Whitefish Credit Union in November 1993. Testimony regarding this transaction was given by the Whitefish Credit Union loan officer who handled the loan. Count II involved a check from AVCO presented to Whitefish Credit Union in May 1993. Testimony regarding this transaction was given by the manager of AVCO and by the Whitefish Credit Union teller that processed the check. Thus, contrary to Robert’s contentions, the proof on each count was not the same.

Likewise, Robert’s contention that the evidence presented at trial regarding the AVCO check was insufficient for a conviction of forgery, is also without merit. The manager of AVCO testified that a check for $1,500 was mailed to Sydney and was subsequently cashed. Sydney testified that the signature endorsing the AVCO check was not hers. The Whitefish Credit Union teller who cashed the AVCO check testified that she was sure it was Robert who presented the check to her to cash because his was the last signature on the back of the check below Sydney’s purported signature. The teller stated that she knew Robert because she had seen him regularly during the previous two years when he came to the credit union to transact business.

Montana’s forgery statute provides, in pertinent part:

(1) A person commits the offense of forgery when with purpose to defraud the person knowingly:
(b) issues or delivers the document or other object knowing it to have been thus made or altered',
(2) A purpose to defraud means the purpose of causing another to assume, create, transfer, alter, or terminate any right, obligation, or power with reference to any person or property.

Section 45-6-325, MCA (emphasis added). Thus the State was not required to prove that Robert actually signed the check, only that he delivered it to the Whitefish Credit Union knowing that it had not been signed by Sydney. Consequently, after viewing the evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Accordingly, we hold that there was sufficient evidence to support the jury’s verdict finding Robert guilty of forging the AVCO check.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and LEAPHART concur.