Opinion
Feb. 25, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 783
Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.
Brenman, Sobol & Baum, Leo T. Zuckerman, Denver, for defendant-appellee.
PIERCE, Judge.
The People appeal from the granting of a motion to dismiss the information as to defendant Vickers.
The chronology of events culminating in the dismissal of the charges against Vickers is as follows. On September 13, 1973, two defendants, Vaughn and Vickers, were charged with felony theft, forgery, and conspiracy. On September 18, 1973, Vaughn was arraigned, and on September 21, 1973, Vickers was arraigned and pled not guilty. On December 3, 1973, the defendants moved for continuance which was granted to March 18, 1974. They were both present and represented by counsel and both specifically waived speedy trial rights provided by s 18--1--405, C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 40--1--505).
On March 18, 1974, defendant Vaughn made an oral motion for continuance to which the district attorney did not object. Defendant Vickers was present with counsel and the record discloses the following took place as to him:
'Mr. Bayless (deputy district attorney): 'Appearing on behalf of the People. It's my understanding that both Defendants in this case, Mr. Vaughn and . . . Mr. Vickers will join in this motion for continuance. They both will waive speedy trial. Under those circumstances the People will not object to the continuance.'
'Mr. Zuckerman (attorney for Vickers): 'That is correct your Honor.'
'Mr. Dwyer (attorney for Vaughn): 'Yes."
Thereafter, the court thoroughly explained the effect of the continuance and the waiver to Vaughn. The court then continued:
'The Court: '. . . Mr. Vickers?'
'Defendant Vickers: 'Yes.'
'The Court: 'You heard me make the statement you are entitled to a trial within six months from the time the plea is entered. Are you willing to waive that right to speedy trial and realize that the six months will start now from today and be six months from today on?'
'Defendant Vickers: 'Yes, sir.'
'The Court: 'You are willing to waive the right to speedy trial?'
'Defendant Vickers: 'Yes, sir.'
'The Court: 'All right. Then we'll set a new trial date then.'
'Mr. Bayless: 'Your Honor, we have discussed a date and have agreed, if it is agreeable with the Court, on the date of June 17th.'
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'The Court: 'That date is agreeable to both Defendants?'
'Mr. Zuckerman: 'Yes, your Honor.'
'Mr. Dwyer: 'Yes."
Thereafter on June 17, 1974, counsel for Vickers appeared before a judge other than the judge who had granted them continuance in March, and orally presented and argued a motion to dismiss on the ground that Vickers had been denied a speedy trial. The court was made aware of the waiver of speedy trial and the March 18th hearing, but granted the motion to dismiss on the ground that 'when he (Vickers) agreed in March to continuance for cooperation, (h)e did not ask, he agreed to it. He still has not received a speedy trial.'
The sole question to be considered is whether the proceedings of March 18, 1974, were sufficient to effect a waiver of Vicker's right to a discharge under the provisions of s 18--1--405, C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 40--1--505). We rule that there was an effective waiver.
We realize that the statute does not specifically speak to the fact situation before us. This statute discusses only specific acts or requests for continuances instigated by either the district attorney or the defendant, and is silent with regard to continuances requested by a co-defendant and granted with the full consent of the district attorney and a defendant in the position of Vickers. However, it is well established that a defendant may specifically waive his right to a speedy trial both under the statute and under Colo.Const. Art. II, Sec. 16. Wilson v. People, 156 Colo. 243, 398 P.2d 35; Keller v. People, 153 Colo. 590, 387 P.2d 421.
An examination of the proceedings of March 18, 1974, lead us to no other conclusion that that Vickers knowingly and unequivocally waived his right to a discharge under the statute until at least six months after that date. The fact that a co-defendant made the request for continuance rather than the district attorney or Vickers himself is irrelevant. It would be a total distortion of the public policy underlying defendant's right to a speedy trial, if we were to allow Vickers to delude the court in this manner, and thereby avoid trial for his alleged crime.
Relying principally on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, Vickers also argues that, the statute notwithstanding, he was denied a speedy trial guaranteed him by the constitutions of the United States and the State of Colorado. The Barker case however, is of little assistance in specific fact situations such as the one before us. See Erickson, The Right to a Speedy Trial: Standards for Implementation, 10 Hous L.Rev. 237. It only specifies the factors of length of delay, reasons for delay, defendant's assertion of his right, and prejudice to the defendant, as items to be considered on an Ad hoc basic. After consideration of these factors in light of the fact situation in this case, we are unable to conclude that Vickers was denied a speedy trial. See People v. Buggs, Colo., 525 P.2d 421; People v. Spencer, Colo., 512 P.2d 260. The proper standard to be applied here is set forth in ABA, Standards Relating to Speedy Trial s 2.3 which states:
'The following periods should be excluded in computing the time for trial: . . . (c) Period of delay resulting from the continuance granted at the request of or With the consent of the defendant or his attorney. . . .'
Judgment reversed. The cause is remanded for further proceedings not inconsistent with this opinion.
ENOCH and STERNBERG, JJ., concur.