Pinelli v. District Court In and For Eighteenth Judicial Dist.
| Decision Date | 21 May 1979 |
| Docket Number | No. 79SA5,79SA5 |
| Citation | 595 P.2d 225,197 Colo. 555 |
| Parties | Dave PINELLI and Phil Pinelli, Petitioners, v. The DISTRICT COURT IN AND FOR the EIGHTEENTH JUDICIAL DISTRICT and theHonorable Richard L. Eason, Respondents. |
| Court | Colorado Supreme Court |
Clark, Martin & Pringle, Bruce D. Pringle, Denver, for petitioners.
J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John R. Rodman, Asst. Atty. Gen., Denver, for respondents.
Dave and Phil Pinelli (petitioners) instituted this original proceeding under C.A.R. 21, and we issued a rule for the respondents to show cause why the criminal action now pending against the petitioners should not be dismissed. We now discharge the rule and remand the cause to the district court for further proceedings.
On April 7, 1978, separate state grand jury indictments were filed in Jefferson County and Arapahoe County charging the petitioners with conspiracy to commit professional gambling in violation of section 18-2-201, C.R.S.1973 (now in 1978 Repl.Vol. 8). The petitioners pled not guilty to the Jefferson County charge on April 24, 1978. More than six months elapsed without a trial on that charge, and they moved for dismissal on the basis that their rights to a speedy trial had been violated. The District Court in and for Jefferson County granted that motion on December 1, 1978, and that action is not contested.
The petitioners pled not guilty to the Arapahoe County offense on May 11, 1978, and the trial was scheduled for, and commenced, on October 31, 1978. On November 6, 1978, the jury reported that it was unable to reach a verdict, and the trial court declared a mistrial. The court immediately set the matter for retrial on January 9, 1979. The petitioners objected to that action, contending that retrial on that date would violate their rights to a speedy trial under section 18-1-405, C.R.S.1973, and Crim.P. 48(b). The trial court denied that motion, and the petitioners instituted this proceeding.
Two issues are before this court: first, what is the length of the period within which an accused must be tried after a mistrial; second, may a defendant be tried for an offense after similar charges allegedly arising out of the same transaction have been dismissed in another jurisdiction?
The petitioners' first contention is that the retrial on January 9, 1979, would have violated their right to speedy trial under Colo.Const. Art. II, Sec. 16, section 18-1-405, C.R.S.1973, and Crim.P. 48(b). Under those provisions, an accused cannot be brought to trial later than six months after arraignment. However, the computation of that six-month period shall not include the period of delay caused by a mistrial, not to exceed three months for each mistrial. The petitioners argue that such delay consists only of the actual time of the mistrial and a short period to allow the parties to resubpoena witnesses. We disagree.
The extension provided following a mistrial is the period of delay caused thereby, but in no event more than three months. In the instant case, a mistrial was declared on November 6, 1978. The trial court immediately set the matter for retrial on January 9, 1979, which was the earliest date available on the court's calendar. Although it is clear that docket congestion would not warrant a retrial later than the three-month maximum period for delay caused by a mistrial, Cf. Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975), it is a factor in determining the reasonableness of the delay within the statutory and procedural time periods of section 18-1-405(6)(e), C.R.S.1973, and Crim.P. 48(b)(6)(V). See Rowse v. District Court,180 Colo. 44, 502 P.2d 422 (1972). A delay of approximately two months cannot be said to be unreasonable under the circumstances of this case.
The petitioners' next contention is that the dismissal of the conspiracy charge in Jefferson County precludes a subsequent prosecution of the conspiracy charges in Arapahoe County. They base their argument on Crim.P. 48(b)(1) and section 18-1-405(1), C.R.S.1973, which states:
The petitioners argue that because the Arapahoe County charges have been dismissed against the named coconspirators, the only conspiracy now alleged in the indictment is that between the petitioners. Because conspiracy between the petitioners was alleged in the Jefferson County indictment, it is argued that the dismissal of those charges bars any further prosecution...
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