The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado-part Ii

• Publication year: 2002
• Pages: 59
• Citation: Vol. 31 No. 8 Pg. 59

31 Colo.Law. 59 Colorado Lawyer 2002.

2002, August, Pg. 59. The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado-Part II

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59

Vol. 31, No. 8, Pg. 59

The Colorado Lawyer
August 2002
Vol. 31, No. 8 [Page 59]

Specialty Law Columns
Criminal Law Newsletter
The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado--Part II
by Patrick Furman

CORRECTED VERSION - SEPTEMBER 2002

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers and judges to provide information about case law legislation, and advocacy affecting the prosecution, defense and administration of criminal cases in

Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 449-0092; Morris Hoffman, a judge for the Second Judicial District Court, Denver

About The Author:

Pat Furman, Boulder, is a Clinical Professor of Law in the Legal Aid & Defender Program at the University of Colorado School of Law - (303) 492-8126.

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

Part I of this two-part article addressed the constitutional right to a speedy trial and provided a preliminary discussion of the statutory right to a speedy trial.1 Part II discusses various issues that arise under Colorado's speedy trial statute, including: (1) delays caused by appellate proceedings; (2) interactions between the right to a speedy trial and the right to the effective assistance of counsel; and (3) delays that are attributable to actions by the prosecution or the court.

Speedy Trial and
Appellate Proceedings

If a defendant's conviction at trial is reversed on appeal, any new trial must commence within six months of the date the trial court receives the mandate from the appellate court.2 This rule does not apply to a conviction resulting from a plea of guilty.3

If an interlocutory appeal is taken in a case, the period of delay caused by the appeal is not included in calculating the statutory speedy trial period, regardless of whether the interlocutory appeal is commenced by the defendant or the prosecution,4 and regardless of whether the appeal is procedurally flawed or denied by the appellate court.5 The delay caused by the appeal and a reasonable amount of time for resetting the matter for trial following remand to the trial court are excluded from the speedy trial calculation.6 Similarly, any delay caused by an original proceeding pursuant to C.A.R. 21 tolls the speedy trial statute.7

The breadth of this exclusion of time spent on interlocutory appeals is not without limit. An interlocutory appeal must: (1) have been taken in good faith; (2) have arguable merit; (3) not have been taken for the purposes of delay; and (4) have raised issues that substantially impacted the prosecution's case.8

In People v. Witty,9 the defendant successfully moved to recuse the District Attorney's Office on the ground that the charges against him involved an allegation that he defrauded a pension fund that covered employees in the prosecutor's office. The prosecution took an appeal to the Colorado Court of Appeals, which was denied on the ground that no final judgment had entered in the case. The defendant subsequently entered a guilty plea, reserving the right to appeal the speedy trial issue because far more than six months had passed since he entered his plea of not guilty.

The Court of Appeals addressed the speedy trial issue this time, and held that the speedy trial statute had been violated, finding that the appeals were not interlocutory for purposes of the statute. An order disqualifying a prosecutor may cause a minor delay while a new prosecutor is appointed; such an order "has no substantial effect on the prosecution's case for purposes of determining whether appeal of that order is an interlocutory appeal."10 The court went on to add that "a defendant ... should not have his or her period of incarceration extended while the government sorts out who should prosecute."11 The defendant's guilty plea was vacated and the Witty case was remanded to the trial court with directions to dismiss the charge.

For appeal time to be excluded from the speedy trial calculation, the appeal must be taken in the pending case. In People v. Rosidivito,12 the prosecution, in a separate action, obtained a trial court order unsealing the defendant's record. The defendant appealed pursuant to C.A.R. 21. The Colorado Court of Appeals held that the delay caused by the defendant's C.A.R. 21 appeal should not be added to the period in which he must be brought to trial. The court concluded that the defendant's right to appeal in the separate case cannot be conditioned on his waiver of speedy trial in the pending criminal case.13

Speedy Trial and the Right To Effective Assistance of Counsel

Another issue that recurs with some frequency is the tension that arises...