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The Issue Of Speedy Trial Rights In Colorado

by H. Michael Steinberg Colorado Criminal Defense Lawyer – Email The Author

The Issue Of Speedy Trial Rights In Colorado is complex and requires a thorough understanding of the Colorado’s laws, rules and regulations governing the procedures followed by the courts when a defendant pleads not guilty and the speedy trial “clock” begins to run.

The Colorado Statutory Right To A Speedy Trial

The rule is simple on it’s face – but like all critically important rights – there are plenty of exceptions.

A defendant must be brought to trial within six months of entering a not guilty plea. § 18-1-405(1).

Colorado’s Statutory Speedy Trial Right (compared to the Constitutional Speedy Trial Right – below)

Colorado Revised Statutes Section 18-1-405(1) provides a defendant a statutory right to be brought to trial within six months from the date he or she enters a not guilty plea.

However, as noted, the statute provides several exceptions which include – for example, the additional delay in Section 18-1-405(6)(g)(I) – when the DA – prosecutor asks for a delay of a trial that continues the trial but is within the 6 months outside date.

Additional Delay At The Request Of The Prosecution – Material Evidence – Without The Consent Of The Defendant

This section 18-1-405(6)(g)(I) provides for an additional delay of up to six months at the request of the prosecution, without the consent of the defendant, if the prosecution demonstrates:

(1) that evidence material to the state’s case is unavailable,

(2) that the prosecution has exercised due diligence to obtain the evidence,

and

(3) that there exist reasonable grounds to believe the evidence will be available at a later date. The prosecution has the burden of proving that the elements of the exception have been met.

Under this law “material” evidence is evidence that is “more than merely probative or relevant.” But it is not required that the material evidence be absolutely indispensable to justify a reasonable delay.

To determine whether evidence is “material,” the trial court must balance the prejudice to the state’s case caused by the absence of the evidence against the prejudice to the defendant’s statutory right to a speedy trial caused by the continuance.

The Issue Of Speedy Trial Rights In Colorado – Here is Colorado’s Speedy Trial Statute With Analysis

§ 18-1-405. Speedy trial

[HMS – This first section sets out the main Speedy Trial Rule in Colorado:]

(1) Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty, he shall be discharged from custody if he has not been admitted to bail, and, whether in custody or on bail, the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode.

[HMS – If there is an appeal which leads to a reversal of the conviction (s) the NEW trial must be commenced from the date the trial court receives the “mandate” or order from the Court of Appeals or Supreme Court granting the right to a new trial.]

(2) If trial results in conviction which is reversed on appeal, any new trial must be commenced within six months after the date of the receipt by the trial court of the mandate from the appellate court.

[HMS – If the trial date has been set and the DEFENDANT asks for a continue – it leads to an additional 6 months of speedy trial time as measured from the date the Defendant’s motion to continue the trial date if granted. ]

(3) If a trial date has been fixed by the court, and thereafter the defendant requests and is granted a continuance for trial, the period within which the trial shall be had is extended for an additional six-month period from the date upon which the continuance was granted.

[HMS – If the Defendant fails to appear (FTS’s) speedy trial is extended for an additional 6 month period of time.]

(3.5) If a trial date has been fixed by the court and the defendant fails to make an appearance in person on the trial date, the period within which the trial shall be had is extended for an additional six-month period from the date of the defendant’s next appearance.

[HMS – This section addresses the situation when the PROSECUTOR asks for a continuance.]

(4) 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.

[HMS – The Defendant cannot “sit on his rights” – he or she must move to dismiss the case for the alleged violation of the Colorado Speedy Trial law.]

(5) To be entitled to a dismissal under subsection (1) of this section, the defendant must move for dismissal prior to the commencement of his trial and prior to any pretrial motions which are set for hearing immediately before the trial or prior to the entry of a plea of guilty to the charge or an included offense. Failure to so move is a waiver of the defendant’s rights under this section.

[HMS – This is the – oops – section – if the defendant or his or her lawyer accept a trial date that is beyond the speedy trial deadline – their right to a speedy trial is extended at least to the end of the trial date or dates selected.]

(5.1) If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had pursuant to this section, then the period within which the trial shall be had is extended until such trial date and may be extended further pursuant to any other applicable provisions of this section.

[HMS – The following section and its subsections are the exceptional situations that were mentioned above.]

(6) In computing the time within which a defendant shall be brought to trial as provided in subsection (1) of this section, the following periods of time shall be excluded:

(a) Any period during which the defendant is incompetent to stand trial, or is unable to appear by reason of illness or physical disability, or is under observation or examination at any time after the issue of the defendant’s mental condition, insanity, incompetency, or impaired mental condition is raised;

(b) The period of delay caused by an interlocutory appeal whether commenced by the defendant or by the prosecution;

(c) A reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and there is good cause for not granting a severance;

(d) The period of delay resulting from the voluntary absence or unavailability of the defendant; however, a defendant shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained, or he resists being returned to the state for trial;

(e) The period of delay caused by any mistrial, not to exceed three months for each mistrial;

(f) The period of any delay caused at the instance of the defendant;

(g) The period of delay not exceeding six months resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant, if:

(I) The continuance is granted because of the unavailability of evidence material to the state’s case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that this evidence will be available at the later date; or

(II) The continuance is granted to allow the prosecuting attorney additional time in felony cases to prepare the state’s case and additional time is justified because of exceptional circumstances of the case and the court enters specific findings with respect to the justification;

(h) The period of delay between the new date set for trial following the expiration of the time periods excluded by paragraphs (a), (b), (c), (d), and (f) of this subsection (6), not to exceed three months;

What Is “Constitutional” Speedy Trial? How Is It Different From Statutory Speedy Trial?

In Colorado the constitutional right to a speedy trial attaches with the filing of a formal criminal charge. Both the United States and Colorado Constitutions, whether a defendant’s right to a speedy trial has been violated is determined by application of a four-factor ad hoc balancing test.

The federal constitutional right to a speedy trial arises from the Sixth Amendment of the United States Constitution U.S. Const. amend VI.

The burden of proving a violation of constitutional speedy trial is on the defendant to prove that he or she has been denied a speedy trial and all relevant facts are to be considered. This constitutional right to a speedy trial is IN ADDITION to the statutory right to speedy trial described above. This right “is distinct from the statutory speedy trial right and the determination as to one does not necessarily dispose of the other.”

A defendant’s constitutional right to a speedy trial has been violated depends on a balancing test that examines:

(1) the length of the delay,

(2) the reasons for the delay,

(3) the defendant’s assertion of his or her right to a speedy trial,

and

(4) the prejudice to the defendant.

The constitutional right to a speedy trial serves three interests:

(1) the prevention of oppressive pretrial incarceration,

(2) the minimization of anxiety and concern of the accused,

and

(3) the limitation of the possibility the defense will be impaired.

Juvenile Criminal Cases and Speedy Trial Rights C.R.S. 19-12-108

A juvenile’s trial for a non jury trial case must be held within sixty days of an entry of a plea of not guilty pursuant to C.R.S. 19 – 2 -108.

BUT the judge may grant a continuance with regard to any of the deadlines specified in subsection (2) of C.R.S. 19-2-108 .. upon making a finding of good cause.

Here is the Colorado Juvenile Right To A Speedy Trial Law

19-2-108. Speedy trial – procedural schedule

(1) The juvenile’s right to a speedy trial shall be governed by section 18-1-405, C.R.S., and rule 48(b) of the Colorado rules of criminal procedure.

(2) In bringing an adjudicatory action against a juvenile pursuant to this article, the district attorney and the court shall comply with the deadlines for:

(a) Holding the detention hearing, as specified in section 19-2-508 (3) (a) (I);

(b) Filing the petition, as specified in section 19-2-508 (3) (a) (V);

(d) Holding the adjudicatory trial, as specified in section 19-2-708 (1).

To view these statutes hit this link and follow the site to the specific sections under Colorado Revised Statutes.

The Issue Of Speedy Trial Rights In Colorado

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.

If you are charged with A Colorado crime or you have questions about The Issue Of Speedy Trial Rights In Colorado, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

Over 40 Years Specializing in Colorado Criminal Law H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 40 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.

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Important: This article is for informational purposes only and not intended to provide legal advice to any individual or group. Individuals and groups should obtain competent legal counsel from lawyers admitted to practice in the jurisdictions where they are subject to legal process.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving ..The Issue Of Speedy Trial Rights In Colorado.