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Harrington v. District Court1/24/1977
--plsfield:pagenum-->
"No irregularity in the arraignment which does not affect the substantial rights of the defendant shall affect the validity of any proceeding in the cause if the defendant pleads to the charge or proceeds to trial without objecting to the irregularity."
Respondents therefore must justify their failure to bring petitioner to trial within six months from when the written plea was received and entered on the court's docket. Respondents' sole excuse for failing to do so is that petitioner's counsel did not expressly object to a trial setting beyond the six-month period. They reason that if a defense counsel is present he must object to a trial setting beyond the six-month period or else waive the defendant's speedy trial rights under the statute.
This court has not yet ruled on this precise issue. In Carr v. District Court, supra, n. 1, we held that a defendant, who contemporaneously objects to a trial setting beyond the six-month limit, is entitled to a dismissal of the charges against him. On the other hand, in People v. Flowers, 190 Colo. 453, 548 P.2d 918 (1976), we held that a defendant, who agrees to a continuance of his own trial until the trial in progress is completed and then manifests this agreement by requesting the court to continue subpoenas and to place the witnesses on call, is not entitled to a dismissal of the charges because he has agreed to an extension beyond the six-month period. See also People v. Buggs, 186 Colo. 13, 525 P.2d 421 (1974), and Chambers v. District Court, 180 Colo. 241, 504 P.2d 340 (1972). In none of these cases has this court ruled that a defendant has a duty to make an objection to a late trial setting or that his mere silence in the face of such a trial setting must be construed as a tacit agreement to waive his rights under the speedy trial statute.
For the following reasons, we now hold that mere silence by a defense counsel at a trial setting shall not be construed as a waiver of the defendant's statutory right to a speedy trial. An express consent to the delay or other affirmative conduct evidencing such consent must be shown.
Section 18-1-405(1) provides in pertinent part that
"Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint. . . within six months from the date of the entry of a plea of not guilty . . . the pending charges shall be dismissed. . . ."
We have held that such language is mandatory and leaves no discretion for a court to fashion exceptions to the six-month rule apart from those delineated in the statute. Carr v. District Court, supra.
Notably, the statute does not state that a defendant's failure to object to a trial setting beyond the six-month period should be viewed as a delay attributable to the defendant. In fact, subsection 5 mandates that the only affirmative action required on the part of the defendant be that he move for a dismissal prior to trial.
Subsection 5 does not require the defendant to demand his right at the earliest possible time, but rather, it merely requires that the defendant make such a demand prior to the commencement of his trial, which in most cases, would certainly be after the trial setting.
Rule made absolute.
Disposition
Rule Made Absolute.
Page 1 2 Colorado DUI Attorneys
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