Jaramillo v. District Court In and For Rio Grande County

• Decision Date: 17 May 1971
• Docket Number: No. 25158,25158
• Parties: John Anthony JARAMILLO, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF RIO GRANDE, State of Colorado et al., Respondents.
• Court: Colorado Supreme Court

Page 1219

484 P.2d 1219

174 Colo. 561

John Anthony JARAMILLO, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF RIO GRANDE, State of Colorado et al., Respondents.

No. 25158.

Supreme Court of Colorado, En Banc.

May 17, 1971.

Rollie R. Rogers, Colo. State Public Defender, J. D. MacFarlane, Jr., Chief Deputy

State Public Defender, Denver, J. O. Lewis, Deputy State Public Defender for the 12th Judicial District, Alamosa, for petitioner.

Robert W. Ogburn, District Atty., Twelfth Judicial District, Gail F. Ouren, Asst. Dist. Atty., Monte Vista, for respondents.

ERICKSON, Justice.

Pursuant to C.A.R. 21, the petitioner sought a Writ in the Nature of Mandamus and Prohibition. The petitioner was charged in two separate informations that were filed on January 22, 1970, in the Twelfth Judicial District. The first information charged burglary and theft, and a second information charged theft and arson. Both informations alleged criminal acts that are said to have occurred on December 2, 1969, and involved other persons, some of whom were juveniles.

The petitioner, who was the defendant in the district court, through his counsel, the Public Defender, entered a plea of not guilty and was admitted to bail. His counsel filed a motion to suppress evidence in both cases on February 17, 1970, and similar motions were filed in companion cases that involved juvenile defendants. The motions to suppress were consolidated for hearing and were finally heard on April 14, 1970, at which time evidence was taken, and at the conclusion of the hearing, the court took the matter under advisement. On August 21, 1970, the court denied all motions to suppress.

Trial was set on the burglary and theft charges for April 13, 1971, and on the theft and arson charges for April 15, 1971. A motion to dismiss the charges, based on Crim.P. 48(b) and upon the constitutional right of the petitioner to a speedy trial, was duly made. At the hearing on the motion to dismiss, inquiry was made about the delay that occurred after the motion to suppress was denied. The following colloquy appears in the record:

(BY THE COURT:)

'It was not until February 10, 1971, that a Notice For Trial Setting was filed. As of August 13, or subsequent thereto, this matter was at issue as pertaining to this defendant. That was just three days short of some six month (sic) that this matter sat at issue to be called upon for trial setting.

'The Court's docket in the Twelfth Judicial District and in the County of Rio Grande has never been and is not now, and it was not at that time, so heavily crowed (sic) that a trial to a jury could not commence within six months.

'Can you explain why the delay from August 13, 1970 until February 10, 1971; why it took this time to get this matter called up for trial setting?

'BY MR. OUREN (DISTRICT ATTORNEY): I certainly can, your Honor.

'BY THE COURT: Very well. I would like to hear you on that.

'BY MR. OUREN: All right. The explanation as far as the District Attorney's office was concerned was with the juvenile cases. The fact that there was a Motion to Suppress. The fact that the motion was overruled as to this defendant; that we were seeking an opportunity to use this defendant's testimony in trial as far as the others were concerned. It was through attempts to work this out that we did not attempt to set this matter for trial.

'BY THE COURT: And this took six months?

'BY MR. OUREN: Yes, it did, your Honor.

'BY THE COURT: Were you successful?

'BY MR. OUREN: We were not.'

After a full hearing, the motion to dismiss was denied, and following the denial, the petitioner, through his counsel, caused an Original Proceeding to be filed in this Court, seeking dismissal of the criminal charges and an order prohibiting trial of the two cases which are pending against the petitioner. We entered our order to show cause why the petition should not be granted and stayed the trial of both cases.

In the instant case, the petitioner objected to the vacation of the trial dates that were set for times that fell within the limitations of Crim.P. 48(b). In no instance did the petitioner seek a continuance or take steps of any kind that would cause the delay that extended the time of trial beyond the one-year limitation proscribed by Crim.P. 48(b), which provides as follows:

'(b) By the Court. If, after the filing of a complaint, there is unnecessary delay in finding an indictment or filing an information against a defendant who has been held to answer in a district court, the court may dismiss the prosecution. If the trial of a defendant is delayed more than one year after the trial court obtains jurisdiction over the person of the defendant, unless the delay is occasioned by the action or request of the defendant or except that time consumed by any interlocutory appeals shall not be calculated in the time limits imposed herein, the court shall dismiss the indictment or information; and the defendant shall not thereafter be tried for the same offense.'

The wording of the rule is mandatory when the delay is not occasioned by the action or request of the defendant and when no interlocutory appeal has been taken. Here, the district attorney admitted that the delay was occasioned by the motion to suppress and the fact that the prosecution was seeking to obtain the defendant's testimony for use in prosecuting other defendants allegedly involved in the same occurrence. The district attorney's plea bargaining efforts were the sole basis of the district attorney's election to not set either case for trial. The petitioner never agreed to provide testimony against the other defendants and did not in any way mislead the district attorney. Both cases were passed on two term days, over the objection of the petitioner. In construing Crim.P. 48(b) and the predecessor statute which required trial within two terms of court, C.R.S.1963, 39--7--12, this Court said that: 'The obvious purpose of both the aforementioned rule and statute is to prevent dillydallying on the part of the district attorney or the court in a criminal proceeding.' People v. Bates, 155 Colo. 277, 394 P.2d 134 (1964). No action on the part of defense counsel caused the delay. Timely motions were filed by defense counsel which do not affect the time limitations set forth in Crim.P. 48(b).

Apart from the rule, the right to a speedy trial is guaranteed to the petitioner by botH colO.const. art. Ii, § 16 and by U.S.Const. Amend. VI (Sixth Amendment) which was made applicable to the States in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Accord, Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). The constitutional right to a speedy trial means a trial consistent with the court's business. If the docket conditions were such as to justify the delay, a different fact situation might exist, but when the record reflects no congestion in the court, the failure to try the case within one year requires mandatory dismissal. Gonzales v. People, 156 Colo. 252, 398 P.2d 236 (1965).

The right to a speedy trial is not only for the benefit of the accused, but also for the protection of the public. It is essential that an early determination of guilt be made, so that the innocent may be exonerated and the guilty punished. The right to a speedy trial is not dissipated by the fact that the defendant is granted bail. In re Miller, 66 Colo. 261, 180 P....