People v. Murphy, 25458

• Decision Date: 23 October 1973
• Docket Number: No. 25458,25458
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Kenneth Vernon MURPHY, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 107

515 P.2d 107

183 Colo. 106

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Kenneth Vernon MURPHY, Defendant-Appellee.

No. 25458.

Supreme Court of Colorado, En Banc.

Oct. 23, 1973.

Alexander M. Hunter, Jr., Stanley F. Johnson, Dist. Attys., Robert M. Jenkins, Chief Deputy Dist. Atty., Michael H. Bynum, Deputy Dist. Atty., Boulder, for plaintiff-appellant.

Rollie R. Rogers, Colo. State Public Defender, J. D. MacFarlane, Chief Duputy State Public Defender, Denver, William R. Gray, Lee Allen Hawke, Douglas H. Brown, Timothy S. Borden, Deputy State Public Defenders, Boulder, for defendant-appellee.

HODGES, Justice.

This is an appeal by the district attorney who challenges the trial court's dismissal of burglary and theft charges against defendant Murphy. The basis for dismissal was the trial court's finding that the trial of the defendant was delayed for more than one year and that Crim.P. 48(b) thus required dismissal.

In pertinent part, Crim.P. 48(b) provides:

'. . . 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 elapsed time between the filing of the information on May 27, 1970 and the final trial date was one year, five months and four days. The defendant was under arrest when the information was filed. Therefore, the court obtained jurisdiction over the person of this defendant on the filing date for the purpose of this rule.

The defendant acknowledges and the record reveals that four months and twenty-two days of the elapsed time were consumed as the result of an interlocutory appeal and a continuance requested by the defendant. This amount of time when subtracted, in accordance with Crim.P. 48(b) from the total elapsed time leaves a balance of one year and twelve days.

The district attorney argues that five other delays should be attributed to the defendant, and that any one of these delays if subtracted from the one year and twelve days, would reduce the time to less than one year, and therefore, render the trial court's dismissal under Crim.P. 48(b) improper.

Of the five delays which the district attorney states should have been chargeable to the defendant, two of the delays involve issues of fact resolved in favor of defendant. The determination of these issues are not appealable under C.R.S. 1963, 39--7--26(2), which specifically limits the appeal by a district attorney to questions of law only. We therefore disregard the district attorney's arguments on these two delays. As to the remaining three delays, the trial court correctly resolved the issues of law in favor of the defendant. We therefore affirm.

The three delays in issue here are briefly described and resolved as follows:

I.

The district attorney asserts that the time consumed between the filing of and the hearing on defendant's motion to suppress should have been attributed to the defendant. Whatever the merit of that contention may be, the record in this case clearly indicates that the accused could have been brought to trial within one year but for the unreasonable delays clearly attributable to the prosecution. We therefore dismiss this contention from further...