People v. Slender Wrap, Inc.

• Decision Date: 01 April 1975
• Docket Number: No. 74--332,74--332
• Citation: 536 P.2d 850,36 Colo.App. 11
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. SLENDER WRAP, INC., Defendant-Appellee. . II
• Court: Colorado Court of Appeals

Page 850

536 P.2d 850

36 Colo.App. 11

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. SLENDER WRAP, INC., Defendant-Appellee.

No. 74--332.

Colorado Court of Appeals, Div. II.

April 1, 1975.

Rehearing Denied April 22, 1975.

Certiorari Denied July 7, 1975.

Alexander M. Hunter, Dist. Atty., Peter Hofstrom, Deputy Dist. Atty., Boulder, for plaintiff-appellant.

Alperstein, Plaut & Barnes, P.C., Arnold Alperstein, Lakewood, for defendant-appellee.

ENOCH, Judge.

The People appeal from an order of the district court dismissing the information against defendant corporation on the ground that defendant was denied a speedy trial. We reverse.

On February 13, 1973, a search warrant issued and a search was made of defendant's premises, resulting in the seizure of a number of items and arrest of defendant's employees. On February 20, a complaint was filed against defendant in county court with a summons issued directing defendant to appear in that court on March 27. Defendant filed a motion for a preliminary hearing in the county court, as well as motions for change of venue and disqualification of the judge. On May 17, a preliminary hearing was held in county court. A determination of probable cause was made and defendant was bound over to district court. Defendant next moved for a preliminary hearing in the district court and this issue was contested over the next several months. It was not until April 1, 1974, that defendant entered a plea of not guilty to all counts of the information filed in the district court.

Argument on an additional motion for preliminary hearing was heard on April 23, 1974, on which date defendant advised that it would waive its right to jury trial and moved to dismiss for failure to provide a speedy trial. The court then offered to set trial for May 20, but the prosecution indicated a preference for a June date. The matter was set for trial June 17, 1974. Defendant reserved the right to move to dismiss for failure to provide a speedy trial, which motion was subsequently made and granted by the court on May 29, resulting in the dismissal of the information with prejudice.

Among the findings of the trial court was the following:

'The following time periods have elapsed since the defendant was first 'arrested'. (a) Seven days from the search of the defendant's premises to issuance of the summons and complaint. (b) Thirty-five days from the issuance of the complaint and summons to the return date of the summons. (c) Seventy-eight days from the filing of the request in the county court for a preliminary hearing to the holding of the preliminary hearing in county court. (d) Eighteen days from the bind over in county court to service upon the defendant of the information in district court. (e) Ninety-two days from Judge Scott's disqualification to the hearing on the motion for preliminary hearing, motion to supress evidence and motion for bill of particulars. (f) Fifty days from the Court's order granting a new preliminary hearing to the time the District Attorney filed his request for a writ of prohibition with the Supreme Court. (g) Forty-three days from the Court's Order that suppressed evidence was to be returned forthwith until the day the evidence was actually returned. (h) Forty-eight days from the Court's order that a bill of particulars be provided until it was in fact provided. (i) Thirty-one days from the Court's order granting defendant's motion for discovery until the information was provided to the defendant. (j) One-hundred sixteen days from the filing of the petition for writ of prohibition to the time the Supreme Court ruled thereon. (k) The total time elapsed from the date when the defendant's premises were searched and its employees arrested to the date set for trial is five-hundred days.'

The People contend that the trial court improperly applied Colorado law pertaining to the right to speedy trial, incorrectly attributed all delay in the case to the People, failed to apply Federal Constitutional standards for speedy trial as set out by the United States Supreme Court. The People further contend that it was improper to find that defendant's right to speedy trial was violated without a finding that defendant had been prejudiced by the delay.

I.

Defendant contends first that this appeal should be dismissed pursuant to C.A.R. 3(a) because in filing its designation of record on appeal, the People failed to serve notice on the defendant as required by C.A.R. 10(b). The People admit their omission but contend that dismissal is not required by C.A.R. 3(a).

Dismissal of the appeal for failure to serve notice of designation of record is made discretionary by C.A.R. 3(a), and we consider dismissal inappropriate in this case. The purpose of requiring notice where less than the entire record is designated on appeal is to permit the appellee an opportunity to add to the designated portions. Examination of the record reveals that defendant obtained a copy of the designation and by motion to the trial court obtained permission to add to the designated record. Consequently, defendant has not been sufficiently prejudiced to justify dismissal of the appeal.

II.

By provision of statute and by a recently amended rule of procedure, a defendant is entitled to be tried within six months of the entry of a plea of not guilty. Section 18--1--405, C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 40--1--505); Crim.P. 48(b)(1) and 59. In this case the plea of not guilty was entered on April 1, 1974, less than two months before the dismissal of the case for failure to provide a speedy trial, and consequently neither the statute nor the rule has been violated. However, the right to a speedy trial is guaranteed by the Colorado Constitution, Art. II, Sec. 16, and by the Sixth and Fourteenth Amendments to the United States Constitution, and this constitutional protection is independent of any right established by statute or rule. Potter v. District Court, Colo., 525 P.2d 429.

The determination of whether defendant's constitutional protections have been violated requires a balancing of the conduct of the People and of the defendant, which compels an Ad hoc approach to cases where the right is asserted. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; People v. Spencer, Colo., 512 P.2d 260. In Barker v. Wingo, the United States Supreme Court identified four factors to be weighed in the balance--the length of the delay, the reason for the delay, the defendant's assertion or demand for a speedy trial, and the prejudice to the defendant. There factors have been applied by the Colorado Supreme Court, People v. Buggs, Colo., 525 P.2d 421; Potter v. District Court, Supra; People v. Spencer, Supra, and no one of them alone is determinative.

Length of Delay

The findings of the district court indicate that the court considered the overall delay in this case to encompass five-hundred days. However, since the total number of calendar days between the date of the arrest and date set for trial falls short of that number, this finding is erroneous on its face. Moreover, we are unable to agree with the district court that defendant's constitutional right arose at the time of the search of its premises and the arrest of its employees.

Both the federal and state constitutions provide that an 'accused' is entitled to a speedy trial. While this constitutional protection need not necessarily await indictment, information, or other formal charge, it is ordinarily,

'. . . either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.' United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468.

While it may be proper in many cases to consider such effects of arrest as the deprivation of liberty, loss of employment and financial resources, personal and family anxiety, social obloquy...