Summary
discussing whether ten day period for hearing may be extended by respondent's waiver
Summary of this case from In the Interest of ClintonOpinion
No. 86CA1357
Decided January 21, 1988. Rehearing Denied April 7, 1988. Certiorari Granted People June 13, 1988 (86CA1357).
Appeal from the District Court of Weld County Honorable Francis L. Shallenberger, Judge
Thomas O. Davis, County Attorney, Jan Rundus, Assistant County Attorney, for Petitioner-Appellee.
Minto Hellewell, P.C., Joseph H. Hellewell, for Respondent-Appellant.
William Lynch (Lynch) appeals the order which confirmed his certification for short term mental health treatment pursuant to § 27-10-107, C.R.S. (1982 Repl. Vol. 11). He argues that the trial court erred when it refused to dismiss the action when no trial was provided for him within ten days of his request, as required by statute. We agree that the case should have been dismissed.
Lynch's request for a hearing was made on July 17, 1986. Contemporaneously therewith he filed a motion for "transfer of jurisdiction" from Weld to Pueblo County. In the motion, defendant's counsel stated that she waived "a five-day right for speedy trial" for the purpose of transferring the case. The hearing was not held until July 30, 1986. The People argue that the consent to a five-day delay contained in Lynch's request for a change of venue constituted a waiver of the court's obligation to convene a trial within ten days. Therefore, they assert that a trial held within fifteen days of Lynch's request was valid. We disagree.
A mental health certification proceeding is entirely statutory in nature. Its object is to deprive a person of his liberty. See Barber v. People, 127 Colo. 90, 254 P.2d 431 (1953). Therefore, it is mandatory that there be strict compliance with each of the procedural provisions of such statute, and in the absence of such compliance, the court loses subject matter jurisdiction, i.e., the power to act. People in Interest of Clinton, 742 P.2d 946 (Colo.App. 1987).
In Clinton, failure to appoint an attorney for respondent in a timely manner caused the court to lose jurisdiction over the subject matter. Following the rationale in that case, we hold that failure to convene a hearing within 10 days after a request is made, as mandated by § 27-10-107(6), C.R.S. (1987 Cum. Supp.), likewise deprives the court of any further jurisdiction to act on the petition.
The fact that respondent may have consented to extension of the court's subject matter jurisdiction beyond that permitted by statute is thus of no effect. Subject matter jurisdiction cannot be acquired, expanded, diminished, or altered even though the parties may expressly or impliedly consent thereto. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757 (1962).
Accordingly, since the trial court was without jurisdiction to proceed with the hearing beyond ten days of Lynch's request, regardless of his purported waiver, its subsequent order certifying Lynch for short term treatment is void. Therefore, we need not address Lynch's other contentions of error.
Order vacated.
JUDGE KELLY concurs.
JUDGE VAN CISE dissents.