Valdez v. People
| Decision Date | 12 April 1971 |
| Docket Number | No. 23866,23866 |
| Citation | 174 Colo. 268,483 P.2d 1333 |
| Parties | Lloyd Louis VALDEZ, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Edward H. Sherman, Public Defender, Robert T. Burns, Deputy State Public Defender, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L., Hoecker, Asst. Atty. Gen., Denver, for defendant in error.
This writ of error was sued out by the plaintiff in error (herein referred to as the defendant) from an order of the trial court denying his motion under Rule 35(b), Colorado Rules of Criminal Procedure, without an evidentiary hearing. We affirm the ruling of the lower court.
The record discloses the following chronology:
July 15, 1955--An Information was filed in which defendant was charged with burglary and being an habitual criminal.
August 2, 1955--Defendant entered pleas of not guilty and not guilty by reason of insanity, and the matter was continued to September 13, 1955, to await the results of the sanity examination.
April 29, 1958--An order (reciting that it was on defendant's motion) was entered vacating a sentence that had been imposed on October 16, 1956, and defendant was sentenced to a term of 7 to 10 years in the penitentiary, nunc pro tunc as of October 16, 1956.
June 25, 1959--Defendant filed a petition requesting credit for time served in the county jail prior to trial, and an order was entered 'nunc pro tunc as of April 29, 1959,' granting defendant a credit on his sentence of 13 months and 9 days. (The mittimus issued the same date recites the correct date of April 29, 1958.)
December 4, 1967--Defendant filed his 35(b) motion in which he requested that his conviction (apparently some eleven years previous) be set aside on the ground that the trial court did not have jurisdiction to try him because he was not tried within two terms of court.
May 21, 1968--The court denied defendant's motion without a hearing.
The record contains no indication as to when the trial was held, except for defendant's motion which alleges that the trial commenced on September 25, 1956. Assuming this assertion is accurate, it is apparent that the trial was held more than two terms after filing the information.
Defendant's motion is bottomed on C.R.S. 1963, 39--7--12 (), with but passing reference to the constitution, either state or federal. In his brief, defendant relies primarily on the constitution. Both the Colorado and United States Constitutions guarantee an accused a right to a speedy trial in essentially the same language. The Sixth Amendment right set forth in the United States Constitution was made applicable to state trials by Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, and defendant relies heavily on this holding. Klopfer is questionable authority as support for defendant's contentions because of the significant difference in the factual situation, as is readily apparent from the first few lines of the opinion which read: 'The question involved in this case is whether a State may Indefinitely postpone prosecution on an indictment without stated justification over the objection of an accused who has been discharged from custody.' (Emphasis added.)
We do not quarrel with the general statement from Klopfer, quoted in defendant's brief, that the right to a speedy trial is a 'basic constitutional right,' no matter by which constitution such right is guaranteed. But, the right to a speedy trial is necessarily a relative concept. Maes v. People, 169 Colo. 200, 454 P.2d 792; Arthur v. People, 165 Colo. 63, 437 P.2d 41. The constitutional provision is a guarantee only against arbitrary and oppressive delays, Jordan v. People, 155 Colo. 224, 393 P.2d 745. The constitutional guarantee can be waived by failure to make objection to the delay at the time of trial, Keller v. People, 153 Colo. 590, 387 P.2d 421; Keller v. Tinsley, 335 F.2d 144, cert. den. 379 U.S. 938, 85 S.Ct. 342,...
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