People v. Erickson, 27649
| Decision Date | 06 February 1978 |
| Docket Number | No. 27649,27649 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary Lee ERICKSON, Defendant-Appellee. |
| Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Denver, Nolan L. Brown, Dist. Atty., Robert M. Kelly, Deputy Dist. Atty., Golden, for plaintiff-appellant.
Thomas C. Levi, James S. Kimmel, Littleton, for defendant-appellee.
This appeal challenges the trial court's dismissal of the case because of lack of speedy prosecution. We reverse and remand with directions.
The appellee was charged with aggravated robbery 1 and violent crime. 2 He was arraigned on October 25, 1976, at which time he entered a plea of not guilty and the case was set for jury trial on February 24, 1977. On February 14, 1977, because of a conflict in the court's schedule, the matter was continued to March 29, 1977. The trial court on its own motion declared a mistrial on March 29 because it felt that the jury panel might not be able to render a fair verdict. A second trial was scheduled to begin April 12. After two days of the retrial, the appellee's motion for a second mistrial was granted on April 14, and trial was again rescheduled, this time to April 25. On that date, the trial court granted the appellee's motion to dismiss, holding that speedy trial requirements had not been met. We do not agree.
The applicable speedy trial provision, Crim.P. 48(b)(1), provides in pertinent part as follows:
This provision clearly governs the issue before us. Although the appellee was not brought to trial within six months after entry of his not-guilty plea i. e., by April 25, 1977 a fourteen-day delay was caused by the first mistrial, and an additional thirteen-day delay was caused by the second mistrial. 4 In addition, the final day of the six-month period, April 25, must also be excluded, since the appellee's own successful motion to dismiss prevented him from being brought to trial on that date. Crim.P. 48(b)(1)(VI). See also Simakis v. District Court, (Colo.S.Ct. No. 27889, Jan. 9, 1978). Thus, at the time the trial court dismissed the case, twenty-eight days remained in the six-month period in which the appellee could still be brought to trial.
The appellee challenges this conclusion on several grounds. He first contends that the initial mistrial declared by the trial court was not in fact a mistrial for purposes of the speedy trial statute, because the jury had not yet been selected and sworn and therefore jeopardy had not yet attached. We decline to adopt such a narrow definition of "mistrial." A trial court has broad discretion to declare a mistrial at any point during trial when it appears that, because of irregularities in the proceeding, either party will not receive a fair trial. Maes v. District Court, 180 Colo. 169, 503 P.2d 621 (1972); Brown v. People, 132 Colo. 561, 291 P.2d 680 (1955). If the court is forced to dismiss the jurors, or prospective jurors, and reschedule the trial, whether jeopardy has yet attached is irrelevant.
Second, the appellee argues that prosecutorial misconduct occasioned the second mistrial, and that he should not be forced to suffer additional delay caused by the prosecutor's actions. The speedy trial rule, however, provides for exclusion...
To continue reading
Request your trial
-
People v. Pipkin, 81SA421
...dismissal alleging that he had been denied his right to a speedy trial. The trial judge granted the motion relying on People v. Erickson, 194 Colo. 557, 574 P.2d 504 (1978). Based on the limited facts which are in the record in this case, we do not read People v. Erickson, supra, as mandati......
-
People v. Aragon
...which the constitutional safeguards of due process and fundamental fairness are designed to protect against. Cf. People v. Erickson, 194 Colo. 557, 574 P.2d 504 (1978). Accordingly, we conclude that the defendant's conviction of manslaughter must be For the reasons expressed in this opinion......
-
People v. Sanchez
...and the retrial was excludable from the speedy trial period, provided such delay was reasonable. Similarly, in People v. Erickson, 194 Colo. 557, 574 P.2d 504 (1978), we concluded that the length of delay "caused by any mistrial" included the entire period of delay between the mistrial and ......
-
People v. Beyette
...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 defendan......
-
The Imposition of Constructive Trusts and Other Concepts at Probate-part I
...1973). 29. Judkins, supra, note 10. 30. Meyer v. Schwartz, 638 P.2d 811 (Colo.App. 1981). 31. Weeks, supra, note 11; Breeden v. Dailey, 574 P.2d 504 (Colo.App. 32. Supra, note 24, § 4 at 240. 33. See Judkins, supra, note 10, and Curran, supra, note 28. 34. See Colorado Jury Instructions 2d,......