People v. Gallegos

• Decision Date: 04 April 1996
• Docket Number: No. 93CA2135,93CA2135
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eric Anthony GALLEGOS, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 156

926 P.2d 156

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Eric Anthony GALLEGOS, Defendant-Appellant.

No. 93CA2135.

Colorado Court of Appeals,

Div. III.

April 4, 1996.

Rehearing Denied May 23, 1996.

Certiorari Granted Nov. 12, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, A. William Bonner, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Beth L. Krulewitch, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge ROY.

Defendant, Eric Anthony Gallegos, appeals the judgment of conviction entered on jury verdicts finding him guilty of second degree murder and accessory after-the-fact to manslaughter. Among the grounds for reversal asserted by defendant is that he was denied his statutory right to a speedy trial. We agree and, therefore, reverse the judgment of conviction and remand to the trial court with directions to dismiss the charges with prejudice and to discharge defendant from the sentence imposed.

The charges against defendant arose from the stabbing death of Jason Gutierrez on August 6, 1992. On September 18, 1992, the prosecution filed an information charging defendant and a juvenile with first degree murder after deliberation, felony first degree murder with second degree burglary as the predicate crime, and conspiracy to commit first degree murder after deliberation.

A preliminary hearing was held on November 4 and 5, 1992, following which, on November 10, 1992, the trial court dismissed the felony murder count against defendant and the conspiracy counts against the juvenile. Defendant entered a plea of not guilty on November 18, 1992; therefore, absent any exclusion of time from the statutory speedy trial period under § 18-1-405, C.R.S. (1986 Repl.Vol. 8B), trial would have had to commence on or before May 18, 1993. The prosecution did not request that the arraignment be continued to a later date.

On December 22, 1992, the prosecution filed its notice of appeal in this court challenging the dismissal of the felony murder and conspiracy counts on the grounds that the trial court had applied the incorrect legal standard in finding a lack of probable cause. The prosecution also filed a motion in the trial court to stay the proceedings pending the outcome of the appeal which the trial court granted on January 12, 1993.

Later, pursuant to a plea agreement, the juvenile pled guilty in the juvenile court to conspiracy to commit first degree murder and agreed to testify against defendant. The prosecution then filed a motion in this court to dismiss the appeal on April 6, 1993, one day prior to the due date of the opening brief, stating that it had entered into a plea agreement with the juvenile and that the appeal was moot. This court granted the motion to dismiss on April 8, 1993, and the mandate issued on May 10, 1993. Defendant then filed a motion in this court for sanctions against the prosecution for the filing of a frivolous appeal which was denied with leave to pursue it in an appropriate subsequent proceeding. The trial court later denied a similar motion.

On May 14, 1993, defendant filed a demand for speedy trial pointing out that he had entered his plea on November 18, 1992, and the time within which his trial had to commence would expire on May 18, 1993. No action was taken with respect to the demand and no trial was then scheduled.

On May 19, 1993, defendant filed a motion to dismiss on the grounds that he had been denied his statutory right to speedy trial which motion was denied. Then, over the objection of defendant, trial was set for August 23, 1993.

On June 21, 1993, defendant commenced an original proceeding in the supreme court pursuant to C.A.R. 21 asserting the denial of his statutory right to a speedy trial and requesting dismissal of the action. On June 24, 1993, the supreme court denied review.

Trial commenced on August 23, 1993. Defendant was convicted of second degree murder and accessory after-the-fact to manslaughter and was sentenced, and this appeal followed.

I. Statutory Right to Speedy Trial

Defendant contends that the trial court should have granted his motion to dismiss for denial of his statutory right to a speedy trial. We agree.

Section 18-1-405 requires, with limited exceptions, that an accused person be brought to trial within six months of the entry of a not guilty plea. The statute provides, in pertinent part, as follows:

(1) Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty, he shall be discharged from custody if he has not been admitted to bail, and, whether in custody or on bail, the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode.

....

(5) To be entitled to a dismissal under subsection (1) of this section, the defendant must move for dismissal prior to the commencement of his trial and prior to any pretrial motions which are set for hearing immediately before the trial or prior to the entry of a plea of guilty to the charge or an included offense. Failure to so move is a waiver of the defendant's rights under this section.

(5.1) If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had pursuant to this section, then the period within which the trial shall be had is extended until such trial date and may be extended further pursuant to any other applicable provisions of this section.

(6) In computing the time within which a defendant shall be brought to trial as provided in subsection (1) of this section, the following periods of time shall be excluded:

....

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

Section 18-1-405(6), C.R.S. (1986 Repl.Vol. 8B) specifies a total of seven separate grounds for excluding delays from the computation of a defendant's statutory speedy trial right.

An accused person's right to a speedy trial is ultimately grounded on the Sixth Amendment of the United States Constitution and Article II, Section 16 of the Colorado Constitution. Simakis v. District Court, 194 Colo. 436, 577 P.2d 3 (1978). The speedy trial statute is intended to implement the constitutional right to a speedy trial by requiring dismissal of the charges when the defendant is not tried within the six-month period and when any delay does not qualify for exclusion from the computation of the statutory speedy trial time. People v. Deason, 670 P.2d 792 (Colo.1983).

The provisions of the speedy trial statute are mandatory and leave no discretion for a court to fashion exceptions apart from those set forth in the statute. Harrington v. District Court, 192 Colo. 351, 559 P.2d 225 (1977); Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975). The burden of compliance with the time limitations contained in the speedy trial statute rests with the prosecution and the trial court. People v. Chavez, 779 P.2d 375 (Colo.1989); Marquez v. District Court, 200 Colo. 55, 613 P.2d 1302 (1980); People v. Lopez, 41 Colo.App. 206, 587 P.2d 792 (1978).

The speedy trial statute requires the defendant to take affirmative action to protect his statutory speedy trial right. Sections 18-1-405(5) and 18-1-405(5.1), C.R.S. (1986 Repl.Vol. 8B). In this instance, the prosecution does not assert that defendant failed in any respect to protect his statutory right to a speedy trial, that any time should be excluded from the time computation because of any acts of defendant or his counsel, nor that there was any implicit or explicit waiver by defendant.

The sole basis upon which the prosecution relies for delaying the time within which defendant must have been brought to trial, and excluding any period of delay from the computation of time within which defendant must have been brought to trial, is its "interlocutory appeal."

II. Interlocutory Appeal

As previously indicated, delay occasioned by an interlocutory appeal brought in good faith is excluded from the computation of the speedy trial time. Section 18-1-405(6)(b), C.R.S. (1986 Repl.Vol. 8B). The issue then becomes whether the proceeding filed by the prosecution in this court was an interlocutory appeal within the meaning of § 18-1-405(6)(b). We conclude that it was not.

The prosecution is authorized to bring interlocutory appeals pursuant to § 16-12-102(2), C.R.S. (1995 Cum.Supp.) and C.A.R. 4.1. Section 16-12-102(2) provides:

The prosecution may file an interlocutory appeal in the supreme court from a ruling of the trial court granting a motion made in advance of trial by the defendant for the return of property and to suppress evidence or granting a motion to suppress an extrajudicial confession or admission if the prosecution certifies to the judge who granted such motion and to the supreme court that the appeal is not taken for the purposes of delay and the evidence is a substantial part of the proof of the charge pending against the defendant. The prosecution may also file an interlocutory appeal in the supreme court from a ruling of the trial court granting a motion in limine pertaining to the matters described in this subsection (2), or from a ruling on a motion made pursuant to section 18-1-202(11), C.R.S., challenging the place of trial.

The plain language of this provision demonstrates that the right of the prosecution to bring an interlocutory appeal is limited to rulings affecting the use or admissibility of evidence...