People v. Hogland
| Decision Date | 09 October 1975 |
| Docket Number | No. 75--071,75--071 |
| Citation | 37 Colo.App. 34,543 P.2d 1298 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Johnnie David HOGLAND, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Thomas J. Tomazin, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Alperstein, Plaut & Barnes, P.C., Robert G. Busch, Lakewood, for defendant-appellant.
Defendant Johnnie David Hogland appeals from a conviction on 13 felony counts. We affirm.
The sole issue on appeal is whether the trial court erred in denying Hogland's motion to dismiss for failure of the People to afford him a speedy trial.
The defendant was arrested on January 8, 1974. A criminal complaint was filed January 14, 1974, charging him with 16 felony counts. A county court proceeding for setting the case for preliminary hearing took place on January 25, 1974, pursuant to a demand by the defendant. At this proceeding, the county court judge decided that the serious nature of the charges warranted the devotion of an entire day to the preliminary hearing. He initially set the preliminary hearing for February 7, 1974, to be contingent on the non-occurrence of a trial of another matter previously set for that day; in the event that date was unavailable, the hearing was to be reset for April 19, 1974, the next open date on the court calendar. After a brief discussion with counsel, and over the objection of the defendant, the judge then set the matter for April 19, based on an expressed desire to enable the parties to prepare for a specific hearing date. The defendant was bound over for trial after the April 19th hearing; trial began on September 17, 1974, and concluded on September 20, 1974. The defendant was found guilty on 13 counts, and was later sentenced to a minimum of 10 years and a maximum of 11 years imprisonment.
The defendant initially contends that the failure of the county court to conduct a preliminary hearing until 84 days had elapsed after timely demand constitutes denial Per se of his constitutional right to a speedy trial. He cites Crim.P. 5(a)(4), in effect at the time of the demand for preliminary hearing, contending that this rule represents a judicial mandate that failure to hold a preliminary hearing within 30 days of the setting constitutes the denial of a speedy trial.
At the outset, we acknowledge the distinction drawn by the defendant between the Constitutional guarantee of a speedy trial and Statutory or Judicial provisions designed to implement that guarantee, See People v. O'Neill, Colo., 523 P.2d 123, and we agree that the resolution of the one issue does not necessarily conclude our consideration of the other. Potter v. District Court, Colo., 525 P.2d 429. It must be noted, however, that the same purpose is served by constitution and rule alike: the prevention of procrastination by prosecuting attorneys and courts in criminal proceedings. See People v. Bates, 155 Colo. 277, 394 P.2d 134; Medina v. People, 154 Colo. 4, 387 P.2d 733. Therefore, although the rule and the constitutional provisions relating to speedy trial must be separately considered, it would be illogical to consider either in isolation from the other.
Crim.P. 5(a)(4) provides as follows:
'Every person accused of a felony in a felony complaint has the right to demand and receive a preliminary hearing to determine whether probable cause exists to believe that the offense charged in the felony complaint was committed by the defendant. . . .
The defendant argues that this provision is mandatory, and that, absent a continuance granted for good cause, the failure to hold the preliminary hearing within 30 days following demand requires dismissal regardless of the reason for delay. He submits that the burden of proof as to the existence of good cause for an extension lies with the People, and that under the facts of this case good cause has not been established. We disagree with each of these assertions.
The existence of a congested docket constitutes good cause for the setting of the hearing on April 19. Even though the language of a rule pertaining to speedy trial may appear mandatory on its face, in previous speedy trial cases the Colorado Supreme Court has said that the condition of the court docket must be considered and balanced against other factors. See Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219. In balancing the rights of the defendant to a speedy trial with the other demands of the judicial system, the defendant must ordinarily show that he could have been afforded an earlier hearing consistent with the trial docket conditions. Rowse v. District Court, 180 Colo. 44, 502 P.2d 422.
No such showing was made here. Although a contingent setting could perhaps have been made for a date within the 30-day period, this fact alone, under the circumstances of this case, does not outweigh the crowded condition of the county court docket and the belief of the judge that it was to the advantage of all to set a certain date for the hearing. We therefore hold that the absence of open court dates within the prescribed period constituted good cause for setting the hearing for a date outside that period and the county court judge acted properly in setting the preliminary hearing for a day beyond the 30-day period envisioned by Crim.P. 5(a)(4). The defendant was not thereby deprived of his rights to a speedy trial.
An ad hoc balancing test must similarly be employed in consideration of the constitutional guarantee of a speedy trial. People v. Spencer, 182 Colo. 189, 512 P.2d 260. See Erickson, The Right to a Speedy Trial: Standards for Its Implementation, 10 Hous.L.Rev. 237. The landmark case in this area is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, where a delay of some five years was found to be justifiable. In Barker, the United States Supreme Court identified four factors to be assessed in determining whether defendant had been deprived of the right to a speedy trial: the length of delay, the reason for the delay, the defendant's demand for a speedy trial, and prejudice to the defendant by reason of the delay. The same...
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People v. Glaser, 08CA0411.
...of anything. That interest, however, is given less weight than the potential impairment of his defense. See People v. Hogland, 37 Colo.App. 34, 38, 543 P.2d 1298, 1301 (1975) (under Barker, the mere fact of incarceration is to be accorded relatively slight weight where there is no showing o......
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People v. Anderson, 80CA0517
...90-day period may be extended by "such additional time as the court for good cause shown in open court may grant." People v. Hogland, 37 Colo.App. 34, 543 P.2d 1298 (1975). See also People v. Swazo, 199 Colo. 486, 610 P.2d 1072 (1980). As was stated by the Minnesota Supreme Court in State v......
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People v. Harris, 93CA0964
...from the statutory speedy trial right and the determination as to one does not necessarily dispose of the other. People v. Hogland, 37 Colo.App. 34, 543 P.2d 1298 (1975). Therefore, we must consider whether, although defendant's trial was held within the statutory speedy trial period, his c......
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People v. Lopez
...not provide for this exception to the 90-day time period. Cf. Simakis v. District Court, Colo., 577 P.2d 3 (1978); People v. Hogland, 37 Colo.App. 43, 543 P.2d 1298 (1975). In summary, we conclude that defendant's Pro se letter commenced the running of the statutory time period, that he did......