holding delay attributable to defendant where trial date initially was set within speedy trial period but defense counsel then informed the court he could not try the case until two weeks after the speedy trial deadline
How later courts described this case
- holding delay attributable to defendant where trial date initially was set within speedy trial period but defense counsel then informed the court he could not try the case until two weeks after the speedy trial deadline
- holding that a continuance premised on defense counsel’s unavailability for trial before the speedy trial deadline was chargeable to the defendant
- where defense counsel was not available to try the case on the scheduled trial date, and was not available until after the expiration of the speedy trial period, the delay was attributable to the defendant because rejection of potential trial dates was tantamount to a request for a continuance
- defense counsel’s insistence that case could not be tried within speedy trial period was “tantamount to a request for a continuance”
Written by the judges who cited it.
The opinion
PIERCE, Judge,
dissenting:
I dissent. I favor a more stringent interpretation of the provisions of § 18-1-405, C.R.S.1973 (1978 Repl.Vol. 8) and Crim.P. 48(b). I view the statute and the rule as requiring an express waiver, or some conduct by the defendant himself, which would constitute such a waiver. People v. Gallegos, 192 Colo. 450 , 560 P.2d 93 (1977); Harrington v. District Court, 192 Colo. 351, 559 P.2d 225 (1977). The strength of the presumption against such a waiver is forcefully stated in Sweet v. Myers, Colo., 612 P.2d 75 (1980).
Here, the defendant refused to sign such a waiver, and the actions of his counsel, under the circumstances of this case, should not be allowed to outweigh that refusal to waive the statutory right. Once his refusal to waive was known by the court, and the *1313 excuses were presented by the public defender for being unable to try the case within the statutory period, the public defender should have been ordered to appear on the date set for trial or new counsel should have been appointed and a trial date set within the period. See People v. Johnson, 26 Cal.3d 557 , 162 Cal.Rptr. 431 , 606 P.2d 738 (1980).
Given the present staffing of the courts and the office of the public defender, it may well be that the six-month period is not realistic. However, this matter will have to be solved by the General Assembly and not by the courts. Therefore, I raise my voice in agreement with the rationale set forth by Judge Kelly in her dissent to People v. Anderson, — Colo.App. —, 649 P.2d 720 (1982), the prevailing rule of which serves as the basis for the majority’s disposition of the speedy trial aspect of this case.