Chapter 3 - § 3.3 • EXCUSABLE DELAYS UNDER THE SPEEDY TRIAL STATUTE

• Jurisdiction: Colorado

§ 3.3 • EXCUSABLE DELAYS UNDER THE SPEEDY TRIAL STATUTE

§ 3.3.1—Summary

A variety of delays in bringing the defendant to trial are excluded from the computation of the statutory speedy trial time period. This section discusses those delays that are specifically addressed by the speedy trial statute. The next section discusses delays that have been addressed by case law. Generally speaking, these delays toll the running of the speedy trial time, but do not operate to create a new six-month period.

§ 3.3.2—Consent to Continuance Requested by Prosecution: C.R.S. § 18-1-405(4)

A defendant who agrees to a continuance requested by the prosecution does not, by that consent, give the prosecution and court an additional six months within which to hold a trial. Such consent does, however, extend the statutory speedy trial period by the length of time between the date the continuance is granted and the new trial date. The statute requires an oral or written waiver of speedy trial to create this extension of time.

Specifically, C.R.S. § 18-1-405(4) provides:

If a trial date has been fixed by the court, and thereafter the prosecuting attorney requests and is granted a continuance, the time is not thereby extended within which the trial shall be had, as is provided in subsection (1) of this section, unless the defendant in person or by his counsel in open court of record expressly agrees to the continuance or unless the defendant without making an appearance before the court in person or by his counsel files a dated written waiver of his rights to a speedy trial pursuant to this section and files an agreement to the continuance signed by the defendant. The time for trial, in the event of such agreement, is then extended by the number of days intervening between the granting of such continuance and the date to which trial is continued.

§ 3.3.3—Incompetency and Insanity: C.R.S. §§ 18-1-405(6)(a) and 16-8.5-101, et seq.

There is, at the outset, some question as to whether the county court has jurisdiction to address competency issues raised in misdemeanor cases. C.R.S. § 3-6-105 suggests that the county court does not have jurisdiction over "matters of mental health, including commitment [and] restoration to competence." However, C.R.S. §§ 16-8.5-101, et seq., which address competency in criminal cases, never indicate that these matters should not be heard by a county court. The following discussion assumes that the county court has jurisdiction to address issues relating to both competency and sanity.

Questions concerning the competency of a criminal defendant to proceed can arise in any type of prosecution. Addressing and resolving issues relating to competency generally tolls the running of the speedy trial statute. The process by which competency is raised, investigated, and determined is beyond the scope of this work. However, a general description of that process follows.

Pursuant to C.R.S. § 16-8.5-101(11), a person is incompetent to proceed if,

as a result of a mental disability of developmental disability, the defendant does not have sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense, or that, as a result of a mental disability or development disability, the defendant does not have a rational and factual understanding of the criminal proceedings.

The question of a defendant's competency may be raised by defense counsel, the prosecutor, the court, jail staff, mental health professionals, or others. The Colorado Supreme Court has held that defense counsel has an ethical duty to raise the issue of competency when he or she has reason to believe the defendant is incompetent, and whether or not raising the issue acts to the detriment or benefit of the client. Jones v. District Court, 617 P.2d 803, 807 (Colo. 1980). That decision describes Colorado's competency statutes as designed to help ensure that a defendant receives due process, so the obligation to raise the issue of the defendant's competency may extend to the prosecutor and the court as well. In any event, both the prosecutor and the court have the right to raise the issue pursuant to statute. C.R.S. § 16-8.5-103.

No defendant may be tried or sentenced if he or she is incompetent to proceed. C.R.S. § 16-8.5-102(1). A determination that a defendant is incompetent to proceed shall not preclude the furtherance of the proceeding by the court to consider and decide matters, including a preliminary hearing and motions, that are susceptible of fair determination prior to trial and without the personal participation of the defendant. C.R.S. § 16-8.5-102(1).

Once the issue is raised, the provisions of C.R.S. §§ 16-8.5-101, et seq., govern the process. The trial court should make a preliminary determination of the defendant's competency. The trial court may order mental health evaluations of the defendant to assist in making this finding. This finding becomes the final finding unless defense or prosecution counsel requests a hearing. An objection by counsel necessitates a hearing on the issue. Pursuant to C.R.S. § 16-8.5-102, if a defendant is found incompetent, all proceedings must be suspended. The defendant can be committed to the custody of the department of human services for the...