STATUTORY SPEEDY TRIAL PERIOD CALCULATIONS FOR DISMISSED AND REFILED CHARGES: A CASE STUDY OF COLORADO'S APPROACH.

• Author: Zoglo, Marie

INTRODUCTION

Imagine being arrested and charged with a crime. Months pass, and your trial is continuously delayed because of congestion in the court's calendar and the prosecution's lack of preparation. You know that, in Colorado, the State only has six months to bring you to trial, (1) but five and a half months after your plea of not guilty, you still have yet to be tried. After all this time, just before the six-month speedy trial period expires, the charges against you are dropped. After months of legal stress, you breathe a sigh of relief. And then, months or even years later, the prosecution refiles the same charges against you again--and you are shocked to discover your six-month speedy trial period, previously just weeks from expiring, restarts from zero. The prosecution now gets another six months to bring you to trial on the previously dismissed charges.

The situation described above is a reality for some defendants who face criminal charges in Colorado. This Note analyzes the application of Colorado's statutory six-month speedy trial period when charges are dismissed and later refiled. Under Colorado law, the speedy trial period restarts for refiled charges, (2) unless the defendant can prove that the prosecution "indiscriminately" dismissed and refiled the charges in order to circumvent the speedy trial mandate. (3) However, no Colorado court to date has held that a defendant has met this difficult burden of proving that the prosecution dismissed and refiled the charges specifically to circumvent the six-month speedy trial period. (4) This Note suggests that Colorado courts have created too big of a loophole in Colorado's statutory right to a speedy trial through their longstanding precedent of allowing the speedy trial window to restart following the prosecution's dismissal and later refiling of the same charges. Therefore, this Note argues that Colorado should not restart the speedy trial window for refiled charges, but rather toll the speedy trial window during the period between when the charges are dismissed and refiled.

Part I of this Note will first provide an overview of the speedy trial protections found in both the United States and Colorado Constitutions. Part II will summarize Colorado's speedy trial requirements, stemming from both statutes and case law, detailing when the speedy trial period restarts for refiled charges. More precisely, Part II will explain that Colorado's statutory speedy trial period generally restarts when charges are refiled (the "restarting" approach). Part III will explain other states' approaches to calculating the statutory speedy trial period for refiled charges. Specifically, Part III will describe three alternative approaches for calculating the speedy trial period when charges are dismissed and refiled: letting the speedy trial period continue to run after the charges are initially dismissed (the "continuous" approach); calculating the speedy trial period from when the charges are originally filed but pausing the clock between when the initial charges are dismissed and then later refiled (the "tacking-and-tolling" approach); or a hybrid approach combining the restarting and the tacking-and-tolling approaches (the "hybrid" approach). (5)

Next, Part IV will argue that Colorado's current approach of restarting the speedy trial period for refiled charges does not adequately protect Coloradans' statutory and constitutional right to a speedy trial. Part IV will argue that the better approach is the tacking-and-tolling approach, meaning calculating the speedy trial period using the initial, not refiled, charges as a starting point, while not including the period between dismissal and refiling in the calculation. (6) Because of tacking-and-tolling's relative benefits, Part V will propose replacing Colorado's current restarting approach with the tacking-and-tolling approach. Finally, Part VI will discuss this Note's applicability to other states with speedy trial statutes similar to Colorado's. More specifically, Part VI will note that, while each state's statutory speedy trial landscape is unique because it is also influenced by other factors, such as statutes of limitations, the arguments in tacking-and-tolling's favor are broadly applicable to most states that have a concrete speedy trial period prescribed by statute. Thus, this Note's arguments for adopting the tacking-and-tolling approach apply not just in Colorado, but in any state with a concrete statutory speedy trial period that does not yet follow the tacking-and-tolling approach.

1. FEDERAL AND STATE CONSTITUTIONAL SPEEDY TRIAL PROTECTIONS

   1. United States Constitutional Speedy Trial Protections: The Due Process Clause and the Sixth Amendment

      The Federal Constitution protects the right to a speedy trial through both the Due Process Clause of the Fifth Amendment (7) and the Sixth Amendment's Speedy Trial Clause. (8) This Section will describe, in turn, the protections found in the Due Process Clause, then the Sixth Amendment, as interpreted by the courts.

      First, courts' interpretations of the Fifth Amendment's Due Process Clause provide a narrow speedy trial protection by forbidding "oppressive delay." (9) However, the United States Supreme Court has been clear that the Due Process Clause only has "a limited role to play in protecting against oppressive delay." (10) To prevail on an oppressive delay claim, "the defendant must prove (1) the delay resulted in substantial prejudice to his rights, and (2) the prosecution intentionally delayed prosecution in order to gain a tactical advantage." (11) Thus, the Due Process Clause protects the right to a speedy trial in a few, albeit "limited," circumstances.

      In addition to the Fifth Amendment's Due Process Clause's protection against oppressive delay, the United States Constitution's Sixth Amendment explicitly provides defendants the right to a speedy trial. (12) To determine if a defendant's Sixth Amendment right to a speedy trial has been violated, courts apply the balancing test established in Barker v. Wingo, (13) which uses factors including the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." (14) However, in United States v. MacDonald, (15) the United States Supreme Court held that dismissing and refiling the same charges does not necessarily violate a defendant's right to a speedy trial: "[T]he Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges." (16) Thus, courts cannot include the time between when the Government, acting in good faith, drops and later refiles the same charges in analyzing whether the defendant's Sixth Amendment speedy trial rights have been violated. (17)

      Instead, "[a]ny undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause [of the Sixth Amendment]." (18) This is because, unlike the Due Process Clause, the "Sixth Amendment right to a speedy trial is ... not primarily intended to prevent prejudice to the defense caused by passage of time." (19) Rather, the

      speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges. (20) Because of the importance of these protections, speedy trial rights have been "considered fundamental" since even before this country's founding, dating back to the Magna Carta. (21) Thus, the right to a speedy trial "is one of the most basic rights preserved by our Constitution." (22) Due to the importance of speedy trial rights, violations of the Sixth Amendment right to a speedy trial require

      the unsatisfactorily severe remedy of dismissal of the indictment .... This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy. (23) Thus, violations of the Sixth Amendment right to a speedy trial require a dismissal. (24)

   2. Colorado's Constitutional Speedy Trial Protections

      Colorado's State Constitution similarly protects a defendant's right to a speedy trial: "In criminal prosecutions the accused shall have the right to ... a speedy public trial." (25)

      Because Colorado's constitutional speedy trial protections mirror the Federal Constitution's, (26) Colorado courts have held that similar interests underlie both the federal and state constitutional speedy trial protections, namely "the defendant's right to be free from the anxiety accompanying a public accusation and society's need for a speedy and final determination of criminal charges." (27) However, these "speedy trial provisions are not intended to be applied in a wooden or mechanistic fashion" due to the "countervailing interest in effective enforcement of the criminal laws." (28)

      Because Colorado's constitutional protections mirror the federal ones, state constitutional speedy trial violations are examined using a similar test as federal violations under Barker, (29) relying on the same four factors: "the length of the delay, the reasons for the delay, the defendant's assertion of his right to a speedy trial, and the prejudice to the defendant." (30) Thus, a holding that a defendant has not been denied a speedy trial under the Colorado Constitution "requires ... the concomitant finding that the requirements of the United States Constitution concerning speedy trial have also been met." (31)

      For this reason, consistent with the United States Supreme Court's analysis in United States v. MacDonald, (32) the Colorado Constitution's Article II Section 16 speedy...