Potter v. District Court In and For Fourth Judicial Dist.

• Decision Date: 06 August 1974
• Docket Number: No. 26507,26507
• Citation: 186 Colo. 1,525 P.2d 429
• Parties: John P. POTTER, Petitioner, v. DISTRICT COURT IN AND FOR the FOURTH JUDICIAL DISTRICT et al., Respondents.
• Court: Colorado Supreme Court

Page 429

525 P.2d 429

186 Colo. 1

John P. POTTER, Petitioner, v. DISTRICT COURT IN AND FOR the FOURTH JUDICIAL DISTRICT et al., Respondents.

No. 26507.

Supreme Court of Colorado, En Banc.

Aug. 6, 1974.

Shephard Kole, Colorado Springs, for petitioner.

Robert L. Russel, Dist. Atty., Jerry A. Nelson, Deputy Dist. Atty., Colorado Springs, for respondents.

PRINGLE, Chief Justice.

On October 29, 1971, an information was filed in the District Court of El Paso County against petitioner charging him with felony theft. It alleged that petitioner had taken certain property from his employer in Colorado Springs. A warrant was issued for his arrest. In November, 1971, El Paso County authorities sent the warrant bearing petitioner's Missouri address to Jackson County, Missouri. Petitioner and his family had moved from Colorado Springs to Missouri in July 1971. On January 13, 1972, a Missouri sheriff went to petitioner's home for the purpose of executing the warrant. Since petitioner was not home, the sheriff told petitioner's daughter about the warrant. Later the same day, petitioner surrendered himself. He was arraigned in Kansas City on charges based upon the Colorado warrant. He posted bond and the matter was continued.

The El Paso County District Attorney was notified that petitioner had been arraigned on the Colorado warrant and was requested to commence extradition proceedings. On January 18, 1972, the district attorney decided not to extradite petitioner; however, he informed the El Paso County sheriff's office to keep the local warrant active. On April 18, 1972, the Missouri action was dismissed for failure to extradite.

Petitioner continued to reside in Missouri until June, 1973, when he and his family moved back to Colorado Springs. In March, 1974, he requested a detective friend to check his past record for the purpose of determining whether he would qualify for joining the police department. The detective discovered the open warrant and informed petitioner to that effect. On March 28, 1974, petitioner surrendered himself and was released on his personal recognizance bond.

Petitioner moved to dismiss the action on the grounds that (1) he was not brought to trial within the time period set forth in Crim.P. 48, and (2) his constitutional right to speedy trial had been denied. After a hearing, the trial court denied the motion. Upon application by petitioner, we issued a rule to show cause why the information should not be dismissed and we now make that rule absolute. While we do not believe that Crim.P. 48 requires dismissal, we do hold that the delay caused by the district attorney's failure to initiate timely extradition proceedings denied petitioner his constitutional right to a speedy trial.

I.

Rule 48 of the Colorado Rules of Criminal Procedure was amended after the commencement of this action. The amended rule was made effective on April 1, 1974, and applies to all further proceedings in actions pending on that date. Crim.P. 59. It provides that defendants must be tried within six months from the entry of a plea of not guilty. In the case at bar, no plea has been entered. Hence, there has been no violation of the rule.

II.

We point out that inquiry into whether a petitioner has been denied his constitutional right to a speedy trial is not foreclosed because Crim.P. 48 does not require Per se that the action be dismissed under the particular circumstances of the case. People v. Mayes, 178 Colo. 429, 498 P.2d 1123. The provisions of the rule and the constitutional issue are mutually exclusive, and the resolution of one does not necessarily determine the resolution of the other. The constitutional determination involves an Ad hoc judgment on the particular facts of each case. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. To make this judgment, we consider the length of delay, the reason for delay, defendant's assertion or demand for a speedy trial, and any prejudice to the defendant. People v. Spencer, Colo., 512 P.2d 260.

Here the information was filed in October, 1971; however, petitioner was not brought before a Colorado court until March, 1974. Petitioner made no effort to conceal himself, and El Paso County authorities knew his whereabouts when he was in Missouri. Moreover, they sent a fugitive warrant to Missouri requesting that he be...