People v. Beyette

• Decision Date: 13 January 1986
• Docket Number: No. 83SA450,83SA450
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph J. BEYETTE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1263

711 P.2d 1263

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph J. BEYETTE, Defendant-Appellee.

No. 83SA450.

Supreme Court of Colorado,

En Banc.

Jan. 13, 1986.

Warwick Downing, Dean Johnson, Dist. Attys., Cortez, for plaintiff-appellant.

David Vela, State Public Defender, Debra R. Nickels, Barbara Blackman, Deputy State Public Defenders, Durango, for defendant-appellee.

NEIGHBORS, Justice.

The People appeal from the order entered by the Montezuma County District Court dismissing criminal charges against the defendant on the ground that the statutory speedy trial period established by section 18-1-405, 8 C.R.S. (1978 & 1985 Supp.), had expired. We affirm the judgment of the trial court.

I.

The parties have stipulated to the facts pertinent to this appeal. ¹ Following a preliminary hearing that was held in the county court on April 16, 1981, the defendant, Joseph J. Beyette, was bound over to the district court for arraignment on four charges: attempted second-degree murder (count 1) ², second-degree assault (count 2) ³, first-degree assault (count 3) ⁴, and criminally negligent homicide (count 4) ⁵. Between the date of the preliminary hearing and March 15, 1982, counts 1 and 3 were dismissed when the district court granted the defendant's motions challenging the county court's probable cause determinations. ⁶

On March 16, 1982, after the trial on counts 2 and 4 had commenced, the district court declared a mistrial at the request of the defendant and without objection by the district attorney. ⁷ The case was reset for trial on June 1, 1982. However, on March 26, 1982, the People filed an original proceeding in this court pursuant to C.A.R. 21, and requested a stay of the proceedings. We issued a rule to show cause on April 1, 1982, and ordered a stay of the proceedings in the trial court on May 25, 1982. In their C.A.R. 21 petition, the People sought reinstatement of counts 1 and 3 on the grounds that it was improper for the district court to review the county court's findings of probable cause and that, even if the district court properly could consider the probable cause issue, the evidence established probable cause. The People also sought reversal of the district court's ruling prohibiting a witness who had been hypnotized from testifying.

In People v. District Court, 652 P.2d 582 (Colo.1982), we held that it was improper for the district court to review the county court's findings of probable cause, and, therefore, did not reach the merits of the dismissal orders. We did not rule on the testimonial competence of the hypnotized witness because the trial court had not conducted a full evidentiary hearing on the issue. Our opinion was announced on October 12, 1982. We ordered the district court to reinstate the attempted second-degree murder and the first-degree assault charges, counts 1 and 3. On October 27, 1982, the remittitur issued. Thereafter, on January 25, 1983, the district court set the trial for March 7, 1983.

On or about February 22, 1983, Beyette's counsel informed the district court that he would file a motion to dismiss the information because the defendant's speedy trial rights had been denied. The parties then stipulated that the trial date of March 7, 1983, be vacated and that the motion to dismiss be set for hearing on March 8, 1983. After the hearing, the court took the motion under advisement. Finally, on August 29, 1983, the district court granted Beyette's motion and dismissed all of the charges because the case had not come to trial within the statutory period. The dismissal order was made nunc pro tunc to March 8, 1983. ⁸

II.

The parties agree that the date on which the defendant's right to a speedy trial began to run is October 6, 1981, when Beyette requested a continuance of the trial date and waived his speedy trial rights. After the mistrial was declared, the People had 113 days to bring the defendant to trial. ⁹ Nine days elapsed between March 16 and March 26, 1982, when the People filed the original proceeding in this court. When the remittitur was issued by this court on October 28, 1982, 104 days of the original speedy trial period remained. Since the trial was not set to begin until March 7, 1983, the six-month period which began on October 6, 1981, and excluding the time while the original proceeding was pending, had expired.

The issue thus presented is whether the statutory speedy trial period was merely tolled while the People successfully prosecuted an original proceeding challenging the trial court's dismissal of two counts of a four-count information, or whether a new six-month period was triggered on remand from this court. If the statute was only tolled, then Beyette was not brought to trial within the six-month speedy trial requirement, and the court properly dismissed all counts. On the other hand, if a new six-month period was triggered on remand, then the March 7, 1983 trial date was not beyond the speedy trial period, at least as to the reinstated counts.

Section 18-1-405, 8 C.R.S. (1978 & 1985 Supp.), provides that a defendant must be brought to trial within six months from the date he enters a plea of not guilty, except as otherwise provided in the statute or Crim. P. 48. ¹⁰ Absent compliance with this mandate, the pending charges must be dismissed and the defendant cannot again be prosecuted for the same offenses. The statutory language is mandatory. E.g., People v. Bell, 669 P.2d 1381 (Colo.1983); Harrington v. District Court, 192 Colo. 351, 559 P.2d 225 (1977). Certain periods of delay are excluded from the six-month requirement. Among these excluded time periods are:

(6)(b) The period of delay caused by an interlocutory appeal whether commenced by the defendant or by the prosecution;

....

(e) The period of delay caused by any mistrial, not to exceed three months for each mistrial;

(f) The period of any delay caused at the instance of the defendant;

(g) The period of delay not exceeding six months resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant if:

.... (II) The continuance is granted to allow the prosecuting attorney additional time in felony cases to prepare the state's case and additional time is justified because of exceptional circumstances of the case and the court enters specific findings with respect to the justification.

§ 18-1-405, 8 C.R.S. (1978 & 1985 Supp.).

A.

There are two categories of charges in this case: Those that were dismissed and ordered reinstated and those that were not dismissed. Our decisions in People v. Ferguson, 653 P.2d 725 (Colo.1982), and People v. Hampton, 696 P.2d 765 (Colo.1985), clearly require the dismissal of the latter charges.

In Ferguson, 653 P.2d 725 (Colo.1982), we held that an original proceeding under C.A.R. 21 was an "interlocutory appeal" within the meaning of section 18-1-405(6)(b), 8 C.R.S. (1978). The defendant in that case moved to dismiss the case on speedy trial grounds and argued that the period when the original proceeding was being considered by this court was included in the six-month period. We rejected his contention and held that the pendency of the original proceeding tolled the speedy trial statute. Specifically, we stated: "[A]n original proceeding initiated in good faith by either the defense or the prosecution constitutes an 'interlocutory appeal' for purposes of the speedy trial statute." Id. at 728. We recently stated in Hampton, 696 P.2d 765 (Colo.1985), that "when the prosecution filed the first notice of interlocutory appeal with the clerk of the district court, the trial court was divested of jurisdiction to act on the People's motion for a rehearing in the absence of a limited remand from this court." 696 P.2d 765, 772. In discussing the earlier issuance of a mandate to the trial court by this court, we stated that "the trial was to commence within the fifty-four remaining days," not within six months. Id.

Here, the undismissed charges remained pending in the trial court while the People not only sought reinstatement of the dismissed counts but also review of the district court's ruling concerning the admissibility of certain evidence which affected all of the charges. During that time, the district court was divested of jurisdiction to act on the undismissed charges. The statutory speedy trial requirement as to the undismissed charges was merely tolled and the district court properly dismissed them.

B.

The question presented by the dismissed charges, however, is whether the remand following a successful original proceeding ended what was only a tolling of the six-month requirement or initiated a new six-month time period. We find the reasoning of Ferguson persuasive and extend its holding to cover charges dismissed and later reinstated. See also People v. Erickson, 194 Colo. 557, 574 P.2d 504 (1978) (in reinstating charges on appeal, we noted that on remand the People had only twenty-eight days to bring the defendant to trial, not a new six-month period).

As the facts in this case illustrate, in some situations not all of the charges alleged in the indictment or information are dismissed by the trial court. See, e.g., People v. District Court, 673 P.2d 998 (Colo.1983); People v. District Court, 643 P.2d 37 (Colo.1982). Accordingly, while one party pursues an original proceeding to challenge either the dismissal or the refusal to dismiss a particular count or some other trial court ruling affecting less than all of the counts in a multi-count charging document, the other charges remain pending in the trial court.

We have generally attached significance to judicial economy. The General Assembly enacted a compulsory joinder statute, § 18-1-408(2), 8 C.R.S. (1978 & 1985 Supp.), to require the consolidation of criminal charges that properly should be tried together. We discussed the purposes of the compulsory joinder statute in Corr v. District Court, 661 P.2d...