People v. Walker, 10CA1236.

• Docket Nº: No. 10CA1236.
• Citation: 252 P.3d 551
• Case Date: February 17, 2011
• Court: Court of Appeals of Colorado

252 P.3d 551

The PEOPLE of the State of Colorado, Plaintiff–Appellant,
v.
Quincy Yarnell WALKER, Defendant–Appellee.

No. 10CA1236.

Colorado Court of Appeals, Div. II.

Feb. 17, 2011.

[252 P.3d 552]

Donald S. Quick, District Attorney, Michael J. Milne, Senior Deputy District Attorney, Brighton, Colorado, for Plaintiff–Appellant.Douglas K. Wilson, Colorado State Public Defender, Jessica Jones, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellee.Opinion by Judge LOEB.

The prosecution appeals the trial court's order dismissing domestic violence charges which it refiled against defendant, Quincy Yarnell Walker, after the court dismissed the original charges, without prejudice, due to the victim's failure to appear for trial. Because we conclude the court erred in its determination that the dismissal and refiling of charges violated defendant's statutory right to a speedy trial, we reverse the order of dismissal and remand for reinstatement of the charges.

The speedy trial statute entitles a defendant to a dismissal of the charges if the case is not brought to trial within six months of the date a not guilty plea enters. § 18–1–405(1), C.R.S.2010; People v. Platt, 170 P.3d 802, 806 (Colo.App.2007), aff'd on other grounds, 201 P.3d 545 (Colo.2009).

However, “[w]hen charges in a complaint are properly dismissed within the speedy trial period without prejudice, they become a nullity. If and when the defendant is arraigned under a subsequent information, the speedy trial period begins anew, even if the charges are identical.” Huang v. County Court, 98 P.3d 924, 928 (Colo.App.2004). The rationale for this rule is that where “the charges of the original information are dismissed without prejudice by the trial court within the speedy trial period, such dismissal is sufficient to protect a defendant's rights under [section] 18–1–405.” Meehan v. County Court, 762 P.2d 725, 726 (Colo.App.1988).

There is an exception to the rule that the refiling of previously dismissed charges results in a resetting of the speedy trial clock. But it is a narrow one, and it applies only where a defendant “affirmatively establish [es]” that the prosecution “indiscriminately dismiss[ed] and refile[d] charges in order to avoid” the statutory speedy trial mandate. Id.

Where, as here, a trial court dismisses charges based on its application of a speedy trial statute to undisputed facts, our review is de novo. See People v. Carr, 205 P.3d 471, 473 (Colo.App.2008).

I. Procedural History

The prosecution charged defendant with first degree assault, second degree assault, and violation of a restraining order. The supporting affidavit alleged that he had repeatedly struck and kicked the victim, who

[252 P.3d 553]

was then pregnant with his child, in the face. According to the affidavit, the victim suffered two black eyes and a broken nose.

On October 6, 2008, the six-month statutory speedy trial period began to run when defendant entered a not guilty plea. The court scheduled a trial for March 9, 2009.

In January, the court granted the prosecution's motion to continue the trial due to the unavailability of an expert witness. The court rescheduled the trial for March 30, 2009.

At a motions hearing in February, the prosecutor informed the court that the victim had been served with a subpoena (to appear for the March 30 trial) while she was at a hospital to deliver her baby. The court directed the prosecutor to have her served with a second subpoena to appear for a pretrial conference on March 18, 2009.

On March 4, 2009, the prosecutor informed the court that, although the victim remained under subpoena for the March 30 trial and had told him that she intended to appear, she had also said she would not appear for the pretrial conference on March 18. The prosecutor explained that efforts were under way to locate the victim and have her served with a subpoena for the pretrial conference.

Those efforts were not successful, and the victim did not appear for the pretrial conference on March 18, 2009. Defense counsel informed the court that her investigator had spoken with the victim on the phone, and that the victim had stated she would not appear for the pretrial conference or the trial. In response, the prosecutor explained that defendant had a “history ... [of] cases ... be[ing] dismissed because people don't show up.” The prosecutor insisted that he was “not willing to just throw up [his] hands and say that because she doesn't want this to go forward, that [he would be] willing to drop this.” In addition, he assured the court that, if the victim failed to appear for trial and the court issued a warrant, he would go to great lengths to have her arrested: “[W]e can go find her.... It will take us a lot of work to do it, but we will do it.” The court agreed to leave the trial set as scheduled.

The victim did not appear for trial on March 30, 2009, and the prosecutor told the court that she had not responded to his voice message offering to arrange transportation to the courthouse. The prosecutor asked the court to continue the trial, release defendant from custody, and issue an arrest warrant for the victim so that he could then have the “Fugitive Task Force” search for her, including at “the shelter that she goes to.” Defense counsel objected to the requested continuance, noting that the speedy trial period would expire on April 6.

The trial court refused to grant a continuance and sua sponte dismissed the charges, stating there was “no reason to believe” the victim would appear in the future. However, the court made clear that the dismissal was “without prejudice.” Defendant did not object to the dismissal without prejudice.

On November 10, 2009, the prosecutor refiled the charges (which were identical to the original charges, except that the lesser included offense of second degree assault was not charged separately). In an accompanying notice, he informed the court that the victim had recently been “picked up on the warrant” which the court had...