Adargo v. People, 21724
| Citation | 411 P.2d 245,159 Colo. 321 |
| Decision Date | 28 February 1966 |
| Docket Number | No. 21724,21724 |
| Parties | Jack George ADARGO, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant In Error. |
| Court | Supreme Court of Colorado |
Jack George Adargo, pro se.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., James F. Pamp, Asst. Atty. Gen., Denver, for defendant in error.
Jack Adargo, plainitff in error, was charged by information in the Denver District Court on December 13, 1961 with having perpetrated a robbery and also with conspiracy to commit the aforementioned robbery. He pleaded not guilty and went to trial on September 11, 1962 with the aid of assigned counsel. The jury found Adargo guilty on both counts, and he was sentenced to 25-35 years in the penitentiary on the first count and 8-10 years on the second count.
Adargo did not request a writ of error to that conviction. Some six days before his time to apply for writ of error expired, Adargo wrote the trial judge requesting appointment of counsel to prosecute a writ of error. In his letter, Adargo advised the trial court that he had been trying to hire a lawyer, and had not been able to obtain sufficient funds for that purpose. He pointed out to the court that the time limit for filing a writ of error would soon expire. The trial court, nevertheless, did not appoint counsel.
Adargo, thereafter, filed a motion under Rule 35(b), Colo.R.Crim.P. alleging (1) that he was not brought to trial within two terms of court, (2) that he was denied a speedy trial as guaranteed to him by the constitution of the State of Colorado, and (3) that his constitutional rights were violated by the trial court's refusal to appoint counsel to prosecute on his behalf a writ of error to the original judgment. The trial court denied Adargo's motion, and he seeks to reverse that ruling here.
We agree with the trial court that Adargo, by his conduct, waived any statutory rights he may have had to discharge because he was not brought to trial within the time limits set forth in C.R.S. '53, 39-7-12. Adargo made no objection to the trial date set by the court, and, in fact, requested a continuance to an even later date, which was denied. We held in Keller v. People, 153 Colo. 590, 387 P.2d 421, that under such circumstances there is a waiver of any of the statutory and constitutional provisions upon which Adargo relies. That the rule announced in Keller v. People, supra, violates no Federal constitutional guarantees was affirmed by the United States Court of Appeals for the 10th Circuit in Keller v. Tinsley, 335 F.2d 144.
Nor can we say on the state of the record here that Adargo was denied the speedy trial guaranteed by the Colorado Constitution. In Medina v. People, 154 Colo. 4, 387 P.2d 733, we defined a speedy trial as one 'consistent with the court's business.' There is nothing in the record or in the brief of Adargo to show a lack of diligence on the part of the prosecution or the court in this case. Moreover, Adargo's failure to object to the trial date, or to seek an earlier trial date, and his request for a continuance, all operated to waive whatever constitutional rights may have existed under the circumstances of this case. Hicks v. People, 148 Colo. 26, 364 P.2d 877.
We agree with Adargo, however, that the trial court erred in failing to appoint counsel to prosecute his writ of error. There is no longer any doubt that...
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