Harrington v. District Court In and For Morgan County

• Decision Date: 24 January 1977
• Docket Number: No. 27411,27411
• Citation: 192 Colo. 351,559 P.2d 225
• Parties: Richard G. HARRINGTON, Petitioner, v. DISTRICT COURT IN AND FOR the COUNTY OF MORGAN et al., Respondents.
• Court: Colorado Supreme Court

Page 225

559 P.2d 225

192 Colo. 351

Richard G. HARRINGTON, Petitioner, v. DISTRICT COURT IN AND FOR the COUNTY OF MORGAN et al., Respondents.

No. 27411.

Supreme Court of Colorado, En Banc.

Jan. 24, 1977.

Allen J. Kincaid, Brush, Dean J. Spader, Denver, for petitioner.

Doyle T. Johns, Jr., Dist. Atty., David L. Roberts, Deputy Dist. Atty., Ft. Morgan, for respondents.

HODGES, Justice.

Petitioner in this original proceeding seeks relief in the nature of prohibition or mandamus to compel the respondent county court and respondent district court to dismiss a criminal charge against him on the grounds that he was not brought to trial within the six-month period required by section 18--1--405, C.R.S.1973, and Crim.P. 48(b). We issued a rule requiring the respondents to show cause why such relief should not be granted. We make the rule absolute and order the respondents to dismiss the criminal charges against the petitioner.

This case presents two issues: (1) whether the petitioner properly entered his plea of not guilty so that the six-month time limit commenced; and (2) whether petitioner agreed to waive his statutory speedy trial rights by not expressly objecting to a trial setting beyond the six-month period. ¹

The facts pertinent to the resolution of these issues are relatively brief. On January 9, 1976, petitioner was issued a summons and complaint, charging him with Driving under the Influence of Alcohol ² on or near that date. On January 14, 1976, counsel for defendant mailed a written 'Entry of Appearance,' 'Entry of Plea of Not Guilty,' and 'Demand for Jury Trial and Speedy Trial' to the county court. These were entered on the criminal docket by the court. On July 7, 1976, counsel for the petitioner and an assistant district attorney attended a pretrial conference. At this time, a trial date of August 18, 1976 was set, which was approximately eight months from the date of the entry of the plea. No record of the trial setting is before this court, although both parties agree that petitioner's counsel did not expressly object to this trial date.

Two weeks prior to the trial date, petitioner filed a motion to dismiss based on the failure to try him within the six-month period provided by statute. The county court rejected this motion to dismiss and the district court refused to grant petitioner's request for relief in the nature of prohibition and mandamus against the county court because it felt that the speedy trial issue should be decided in the normal appellate channels. Thereafter, petitioner requested relief from this court pursuant to C.A.R. 21.

In answer to our show cause order, respondents claim that petitioner's written plea by his counsel was not in accordance with the statutes and court rules of procedures and therefore did not effect a commencement of the six-month period under the speedy trial statute. ³ Respondents cite Crim.P. 10, which states that an 'arraignment shall be conducted in open court,' and Crim.P. 10(a) and 11(c), which permits a court to accept pleas 'entered in writing by the defendant or orally made by his counsel' in certain misdemeanor cases. ⁴ Neither of the rules expressly permit written pleas made by defendant's counsel.

Even were we to accept respondents' theory that a written entry of a plea of not guilty by a defense counsel does not comply with the foregoing court rules, we, nevertheless, believe the plea in this case was effective for purposes of commencing the speedy trial period. The county court, the district attorney, and the petitioner affirmatively proceeded on the basis that a plea of not guilty had been entered when setting the case for trial.

We note also that the arraignment procedures are designed primarily to protect the defendant, and as a result, section 16--7--203, C.R.S.1973, provides that a defendant may waive any technical irregularity in the proceeding:

'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 failin 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, Colo., 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...