Colorado § 16-14-104 - Trial or dismissal.

§ 16-14-104. Trial or dismissal.

(1) Within one hundred eighty-two days after the receipt of the request by the court and the prosecuting official, or within such additional time as the court for good cause shown in open court may grant, the prisoner or the prisoner's counsel being present, the indictment, information, or criminal complaint shall be brought to trial; but the parties may stipulate for a continuance or a continuance may be granted on notice to the prisoner's attorney and opportunity to be heard. If, after such a request, the indictment, information, or criminal complaint is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information, or criminal complaint be of any further force or effect, and the court shall dismiss it with prejudice.

(2) Any prisoner who requests disposition pursuant to section 16-14-102 may waive the right to disposition within the time specified in subsection (1) of this section by express waiver on the record after full advisement by the court. If a prisoner makes said waiver, the time for trial of the indictment, information, or criminal complaint shall be extended as provided in section 18-1-405 (4), C.R.S., concerning waiver of the right to speedy trial.

Source: L. 69: p. 291, § 8. C.R.S. 1963: § 39-23-3. L. 95: Entire section amended, p. 463, § 7, effective July 1. L. 2004: (1) amended, p. 1377, § 1, effective July 1. L. 2012: (1) amended, (SB 12-175), ch. 208, p. 859, § 94, effective July 1.

ANNOTATION

Purpose of act. The uniform act is intended to render constitutional guarantees of speedy trial more effective. People v. Anderson, 649 P.2d 720 (Colo. App. 1982).

The general speedy trial statute, § 18-1-405, and not this act, applies to the retrial of charges on convictions overturned on appeal. The Uniform Mandatory Disposition of Detainers Act (UMDDA) applies only to untried charges, and the charges against this defendant, while still pending, were not untried. People v. Campbell, 885 P.2d 327 (Colo. App. 1994).

This section applies only when the defendant is in the custody of the department of corrections. Where, at time of request for speedy trial, defendant was incarcerated in a county jail in Mississippi, and his deferred sentence was not yet revoked, 90-day time limit did not apply. People v. McPherson, 897 P.2d 923 (Colo. App. 1995).

The issue of physical custody is irrelevant when determining the applicability of the UMDDA. People v. Carr, 205 P.3d 471 (Colo. App. 2008).

Prisoner's right to invoke procedural protection of UMDDA depends on the existence of formal charges at the time UMDDA request is filed. Consequently, petition for a speedy disposition that predates the filing of an indictment, information, or complaint is a nullity with no legal effect on subsequently filed felony charges. People v. Dehmer, 931 P.2d 460 (Colo. App. 1996).

Prisoner may challenge his or her conviction on UMDDA grounds even if he or she pled guilty. A trial court loses jurisdiction if it fails to comply with this section, and that defect is not waived by a subsequent guilty plea. People v. Gess, 250 P.3d 734 (Colo. App. 2010); People v. Yakas, 2019 COA 117, 461 P.3d 568.

Provisions similar to interstate agreement on detainers. Provisions in this article mandating that prison authorities "forthwith" furnish the certified statement and request, and directing that failure to comply with the specified time requirements for commencing trial will result in dismissal, are almost identical to the analogous provision in the interstate agreement on detainers. People v. Bean, 44 Colo. App. 373, 619 P.2d 72 (1980), rev'd on other grounds, 650 P.2d 565 (Colo. 1982).

Article controls over general speedy trial provisions. This article is a special statute designed to foster more effective prisoner treatment and rehabilitation; thus, when there is a conflict with the general speedy trial provisions, §§ 16-14-101 et seq., 18-1-405, and 24-60-501 et seq., and Crim. P. 48, the provisions of this article control. People v. Swazo, 199 Colo. 486, 610 P.2d 1072 (1980).

Defendant's request for a UMDDA trial was insufficient because it was one sentence in a four-page document filed pro se by defendant who was represented by counsel, the document was misleadingly labeled, and it was improperly delivered. People v. Roberts, 2013 COA 50, 321 P.3d 581.

Continuance and its length determined by circumstances of case. The peculiar circumstances of each case are significant factors in providing guidance for the trial court in determining what must be shown to obtain a continuance or determine its length under the provisions of this article. People v. Swazo, 199 Colo. 486, 610 P.2d 1072 (1980); People v. Fleming, 867 P.2d 119 (Colo. App. 1993), rev'd on other grounds, 900 P.2d 19 (Colo. 1995).

The trial court's judgment regarding whether a continuance should be granted may be reversed on appeal only if there has been an abuse of discretion. People v. Fleming, 867 P.2d 119 (Colo. App. 1993), rev'd on other grounds, 900 P.2d 19 (Colo. 1995).

When dismissal of charges proper. Where a prisoner has substantially complied with the provisions of this article and the prosecution has actual notice of the prisoner's request, it is not an abuse of discretion for the trial court to dismiss pending charges under the article. The court shall dismiss the charges with the prejudice if the prisoner complies with the act and the cause is not brought to trial within 90 days. People v. Mascarenas, 666 P.2d 101 (Colo. 1983).

For purposes of the UMDDA, "actual notice" means "actual knowledge". Merely sending a substantially compliant UMDDA request to the prosecution does not suffice to provide "actual notice". People v. McKimmy, 2014 CO 76, 338 P.3d 348.

Failure to hold trial within prescribed time period requires dismissal of charges. This article by its express terms is jurisdictional, hence dismissal is required regardless of whether defendant was prejudiced by the delay. People v. Naulls, 937 P.2d 778 (Colo. App. 1996).

Statutory period commences to run upon receipt of request, not upon subsequent hearing. The 90-day statutory period commences to run upon receipt by county judge and district attorney's office of request for speedy trial under provisions of the uniform act, and not on date subsequent preliminary hearing. People v. Boos, 199 Colo. 15, 604 P.2d 272 (1979).

Proper sanction for failure to comply with this article is dismissal of the claims with prejudice. People v. Bean, 650 P.2d 565 (Colo. 1982).

Imposition of sanction. The prosecutor should have the burden of establishing lack of prejudice in order to avoid a sanction of dismissal for violation of any provision of the uniform act for which dismissal has not been mandated by the legislature. People v. Higinbotham, 712 P.2d 993 (Colo. 1986).

The appropriate measure for determining the imposition of a sanction for violations of § 16-14-102 (2) properly begins with an examination of purposes furthered by the UMDDA. People v. Higinbotham, 712 P.2d 993 (Colo. 1986).

Filing of detainer not required. The right of a person in the custody of the department of corrections to request final disposition of criminal charges and thereby to obtain a right to trial within 90 days on those charges is not dependent upon the filing of a detainer. People v. Campbell, 742 P.2d 302 (Colo. 1987).

Where there was no action on part of defendant when trial was rescheduled to a time outside the applicable statutory time limit, there was no waiver of his rights under the uniform act. People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978).

Where criminal proceeding initiated by filing criminal complaint in county court, a request for disposition of detainer filed in the county court commences the running of the 90-day statutory period provided for in this section. People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978).

Disposition within 90 days waived. Failure of defendant's counsel to object to the trial date announced and to request an earlier date along with his statement as to availability on the date announced by the court and his affirmative request for a pretrial date to accommodate his convenience all amounted to consent to the date and waiver of the specified 90 days subsequent to the request for detainer disposition. Chambers v. District Court, 180 Colo. 241, 504 P.2d 340 (1972); People v. Kimble, 692 P.2d 1142 (Colo. App. 1984).

Defendant voluntarily waived his objection that his request for final disposition of detainer was not transferred "forthwith" to the trial court when he and his attorney acquiesced freely in a trial date beyond the speedy trial period. People v. Martin, 707 P.2d 1005 (Colo. App. 1985).

Defendant's speedy trial right was violated, and there was no waiver of rights under this section by accepting a trial date outside the 180-day speedy trial period. Defendant's acquiescence in the trial date proposed by the court did not meet the express waiver requirements of subsection (2). The court did not advise defendant that his assent to the trial date would constitute a waiver of his speedy trial right, and defendant did not expressly waive his speedy trial right on the record. Further, the UMDDA advisement form attached to defendant's pro se request for speedy disposition did not advise him that agreement to a trial date set beyond the 180-day limitations period would constitute an implied waiver of his rights under the UMDDA. People v. Carr, 205 P.3d 471 (Colo. App. 2008).

Waiver of rights by participation in trial setting delays. A defendant effectively waives his rights to final disposition within the 90-day statutory limitation period by his active participation in trial setting delays and in his agreement to the appropriate dates. People v. Mascarenas, 666 P.2d 101 (Colo. 1983); People v. Martin, 707 P.2d 1005 (Colo. App. 1985).

A defendant may waive his right to a final disposition within the 90-day statutory period by express waiver, or affirmative conduct evidencing such a waiver, such as active participation in trial setting delays, together with agreement to the appropriate dates. People v. Martinez, 712 P.2d 1070 (Colo. App. 1985).

Extension of the 90-day time limit does not require the defendant's personal consent. The limit was effectively tolled where the judge granted a continuation for the defendant's benefit because the prosecution was ready to proceed, but the defense counsel was not present. People v. Fleming, 900 P.2d 19 (Colo. 1995).

A defendant's UMDDA rights can be waived by either the defendant or counsel. The rights under the UMDDA are not fundamental rights requiring personal waiver by the defendant. Rather, the rights are statutory and the statute does not require waiver by the defendant. People v. Yakas, 2019 COA 117, 461 P.3d 568.

Counsel's waiver, in defendant's presence, of the required advisement was a valid waiver of defendant's UMDDA rights. People v. Yakas, 2019 COA 117, 461 P.3d 568.

When defendant wanted to be represented by counsel and counsel could not be prepared by the end of the speedy trial deadline, the court did not err in giving defendant the choice between waiving his right to a speedy trial or the right to be represented by effective counsel. People v. Bryant, 2013 COA 28, 316 P.3d 18.

Defendant not entitled to relief because defendant's actions of hiring new counsel and then subsequently firing that counsel and representing himself, both of which required a continuance, tolled the 180-day deadline. People v. Gess, 250 P.3d 734 (Colo. App. 2010).

Defendant's speedy trial claim was invalidated by tolling the speedy requirement within 90 days even though trial was not originally set within 90 days. Defendant's motion for a court-appointed expert tolled his speedy trial rights and defendant then expressly waived his speedy trial right at the hearing granting a court-appointed expert. People v. Garcia, 17 P.3d 820 (Colo. App. 2000).

Defendant's request for a continuance of the trial date to allow defense counsel more time to prepare tolled the 90-day time period for trial. People v. Shreck, 107 P.3d 1048 (Colo. App. 2004).

The 90-day time period was tolled where defendant contributed to the delay by not telling his counsel that he had requested final disposition and the date for completion of the 90-day period. People v. Fleming, 900 P.2d 19 (Colo. 1995).

Where a defendant permits a jury trial to proceed to a guilty verdict, there is a waiver of the act's benefits as a matter of law. People v. Kimble, 692 P.2d 1142 (Colo. App. 1984).

Waiver may be of limited scope and duration. Trial court erred in construing such a waiver as broad and perpetual. People v. Naulls, 937 P.2d 778 (Colo. App. 1996).

Time extended by motions for defendant's benefit. Where additional time is necessitated by motions made for defendant's benefit, and reasonable continuances are ordered by the trial court to accommodate defendant's motions, the time for bringing defendant to trial under the uniform act may be extended. People v. Anderson, 649 P.2d 720 (Colo. App. 1982).

Attorney may request continuance without client's approval. An attorney may stipulate to or request a continuance without obtaining his client's personal approval. People v. Anderson, 649 P.2d 720 (Colo. App. 1982).

No abuse of court's discretion in determining that good cause existed for granting continuance upon defense counsel's assertion that he would be unable to provide defendant with effective assistance if required to go to trial on the scheduled date. People v. Roberts, 2013 COA 50, 321 P.3d 581.

Second continuance was necessary to protect defendant's constitutional right to effective assistance of counsel, and the length of the continuance was proper because of recent disclosure by prosecution, because a potential conflict of interest existed, and because good cause existed for substitution of counsel. People v. Roberts, 2013 COA 50, 321 P.3d 581.

Continuance held to be for good cause. Defense counsel's unanticipated military obligations made adequate trial preparation impossible. People v. Anderson, 649 P.2d 720 (Colo. App. 1982).

No abuse of discretion in finding good cause for the continuance, even if good cause required a showing of due diligence, when prosecution failed to subpoena a cooperating witness and defendant did not object to continuing the trial date beyond the UMDDA deadline. People v. Hines, 2021 COA 45, 491 P.3d 578.

Delay to get preliminary hearing not "good cause". Delay which results from a period of time required by the state in order to get a preliminary hearing is not "good cause" for the granting of a continuance. People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978).

Delay not for good cause. Fact that co-defendant who was not subject to UMDDA had trial set for date after 90-day period is not good cause for delaying defendant's trial. People v. Mueller, 851 P.2d 211 (Colo. App. 1992).

Defendant did not expressly waive on the record his right to a speedy disposition under the UMDDA. Defendant was at all times adamant about being tried within the 180-day period. Consequently, the court erred in determining that defendant had waived any UMDDA rights. People v. Roberts, 2013 COA 50, 321 P.3d 581.

There is no untried "indictment, information, or complaint" where the defendant has been convicted but not sentenced. Thus, the provisions of the UMDDA and the Interstate Agreement on Detainers will not apply to sentencing detainers. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993).

An outstanding arrest warrant is not an "indictment, information, or criminal complaint" which triggers the application of this section. People v. McPherson, 897 P.2d 923 (Colo. App. 1995).

Where trial court's ruling is based on a question of law, the standard of review is de novo, rather than an abuse of discretion standard. Trial court applied this section to undisputed facts and concluded that dismissal was mandatory under the plain language of the statute. People v. Carr, 205 P.3d 471 (Colo. App. 2008).