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The Right to a Speedy Trial – Colorado Criminal Defense Law

by Colorado Criminal Defense Lawyer -For The Protection of Your Rights –  H. Michael Steinberg

Entry of Plea & Demand for Trial.  

Under the speedy trial rule, trial must be provided within 6 months from entry of not guilty plea.

A Speedy & Public Trial: C.R.Crim.P. 48(b), CRS 18-1-405, Article II Section 16 of the Colorado Constitution and Amendment 6 to the U.S. Constitution. 

When Speedy Trial Starts

Speedy trial commences on the date of filing the not guilty plea. This can become important as to the date of the speedy trial expiration if the case is transferred to division and advisement (oral) not guilty plea is delayed. 

The Jury Trial Triggers The Start Of The Right To Speedy Trial

In Felony offense cases – at the time when the not guilty plea is entered

The Jury trial is free – if  jail may be imposed in excess of 6 months upon conviction of any charge.

Standard number of jurors is 12, defendant may request 6 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406

In Misdemeanor offense cases – at time when the not guilty plea is entered

Jury trial is free if jail may be imposed in excess of 6 months upon conviction of any charge.

If the potential jail is limited to 6 months or less for each charge, a jury demand must be accompanied by a $25 jury deposit within 10 days from entry of the not guilty plea.   CRS 16-10-109, C.R.Crim.P. 23. 

Although local county court judges will likely grant a jury demand without payment of the jury deposit, absent timely jury deposit payment, Municipal courts most likely will charge the fee.

The Standard number of jurors is 6, defendant may request 3 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406

In Petty offense cases – at the time when the not guilty plea is entered

Petty offenses are crimes or offenses punishable not in excess of imprisonment for six months and a fine of not more than $500, or a combination of imprisonment and fine within such limits. 

There is no constitutional right to a jury trial for a petty offense.

The statutory right to jury trial in a petty offense is established in CRS 16-10-109, however the statute identifies petty offenses as an offense classified as a petty offense or defined as an offense which is punishable by imprisonment other than in a correctional facility for not more than six months, or by a fine of not more than five hundred dollars, or by both such imprisonment and fine. 

Based upon statutory limitations of potential jail not more than 6 months, a jury demand must be accompanied by a $25 jury deposit within 10 days from entry of the not guilty plea.   CRS 16-10-109, C.R.Crim.P. 23.  Refer to ¶3(c)(1) above regarding timely payment.

Standard number of jurors is 3, defendant may request 6 jurors.  C.R.Crim.P. 23, Colorado Constitution Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406  Counsel requests 6 jurors.

The right to jury trial is an important right which should never be waived unless for tactical reasons after consulting with counsel. 

What If The Case Is Set Outside Of The Speedy Trial Deadline?

Objection required.  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 the speedy trial rule or statute. 

A Dismissal motion is required.  To be entitled to a dismissal, 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 of the speedy trial rule or statute. 

The Test For A Denial Of The Right To A Speedy Trial

A balancing test (4 factors) is used to determine whether right to speedy trial has been denied

1.) the length of the delay,

2.) the reason for the delay,

3.) the defendant’s assertion or demand for a speedy trial,

and

4.) the prejudice to the defendant. 

What If The Court Continues The Cases – And Offers New Dates Within Speedy Trial?

But – the Defense lawyer cannot accept any of them…

When a trial court continues a case due to docket congestion but makes a reasonable effort to reschedule within the speedy trial period, and defense counsel’s scheduling conflict does not permit a new date within the speedy trial deadline, the resulting delay is  attributable to the defendant, and the period of delay is excludable from time calculations for the purposes of the applicable speedy trial provision. Hills v. Westminster Municipal Court – 2011

Here is the Colorado Law Of Speedy Trial:

§ 18-1-405. Speedy trial

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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 codefendant 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;

(i) The period of delay between the filing of a motion pursuant to section 18-1-202(11) and any decision by the court regarding such motion, and if such decision by the court transfers the case to another county, the period of delay until the first appearance of all the parties in a court of appropriate jurisdiction in the county to which the case has been transferred, and in such event the provisions of subsection (7) of this section shall apply.

(7) If a trial date has been fixed by the court and the case is subsequently transferred to a court in another county, the period within which trial must be had is extended for an additional three months from the date of the first appearance of all of the parties in a court of appropriate jurisdiction in the county to which the case has been transferred.

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H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call him at your convenience at 720-220-2277


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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