Opinion
No. 27174
Decided February 22, 1977.
Appeal by the People from a judgment dismissing criminal charges against defendant because he was not brought to trial within six months of his arraignment.
Affirmed
1. CONSTITUTIONAL LAW — Speedy Trial — Waiver — Proof — Express — Affirmative Conduct. In order to find that defendant waived his speedy trial rights, express waiver or other affirmative conduct evidencing such a waiver must be shown.
2. CRIMINAL LAW — Speedy Trial — Waiver — Never Filed — Dismissal — Proper. Where trial court informed defendant — shortly after his trial was set — that trial date had been set beyond statutory six-month period, and mentioned filing of a speedy trial waiver, but no such waiver was ever filed, held, under these circumstances, defendant's failure to respond when he was contacted by trial court did not amount to a waiver, and criminal charges against defendant were properly dismissed.
3. Speedy Trial — Argued — Dismissal — Violation — Properly at Issue. Where statutory right to speedy trial was argued by defense counsel and was the express basis for trial court's judgment of dismissal, held, under these circumstances, violation of defendant's statutory speedy trial right was properly at issue in trial court and before supreme court on appeal.
Appeal from the District Court of Jefferson County, Honorable George G. Priest, Judge.
Nolan L. Brown, District Attorney, L. Gary Hebenstreit, Deputy, for plaintiff-appellant.
Dale A. Spiegel, for defendant-appellee.
The People appeal from the judgment of the district court dismissing the criminal charges against defendant Roger Roland Gallegos because he was not brought to trial within six months of his arraignment as required by section 18-1-405, C.R.S. 1973, and Crim. P. 48(b). We affirm.
Gallegos was charged with two counts of selling a narcotic drug in violation of section 12-22-302, C.R.S. 1973.
Shortly after defendant's trial was set, the trial court realized that it had set the trial date beyond the six-month period. The trial court contacted the defendant about this and the filing of a speedy trial waiver was mentioned. No further action was apparently taken by either the district attorney or the trial court. The record is silent as to defendant's or his counsel's actions during this period. No waiver was ever filed. Just prior to the date set for trial, defendant moved for dismissal of the charges against him.
[1,2] In dismissing the charges, the district court acknowledged fault for not resetting the trial date after receiving no response from the defendant concerning a waiver of his speedy trial rights. Implicit in its ruling of dismissal is the finding that the defendant did not waive his statutory speedy trial right. In affirming this judgment, we emphasize our recent ruling that an express waiver or other affirmative conduct evidencing such a waiver must be shown. Harrington. v. District Court, 192 Colo. 351, 559 P.2d 225. We reject the district attorney's argument that the defendant's action in not responding when the trial court contacted him amounted to a waiver.
[3] The district attorney also suggests that the defendant cannot raise the issue of his statutory speedy trial right because his motion for dismissal was predicated solely on the assertion of his constitutional right to a speedy trial. This argument is without merit. The issue of his statutory right was argued by counsel and was the express basis of the trial court's judgment of dismissal. Consequently, the violation of defendant's statutory right was properly at issue in the trial court and is before this court on appeal.
Judgment affirmed.