April 30, 2017

Colorado Court of Appeals: Vacation and Sick Leave are Pecuniary Losses Compensable to Victim Under Restitution Act

The Colorado Court of Appeals issued its opinion in People v. Perez on Thursday, April 20, 2017.

RestitutionVacationSick LeaveProximate CausePecuniary Loss.

Perez pleaded guilty to leaving the scene of an accident resulting in serious bodily injury. After the court sentenced Perez, the prosecution requested restitution based on the victim missing 55 days of work after the accident, including use of vacation and sick leave. Perez argued that the victim’s expenditure of leave was not compensable and that he was not the proximate cause of the victim’s losses because he pleaded guilty to leaving the scene of an accident resulting in serious bodily injury but not to any crime establishing that he was the proximate cause of the victim’s injury. The district court held that Perez was the proximate cause of the victim’s losses and ordered restitution.

On appeal, Perez claimed that the district court erred in holding that his actions were the proximate cause of the victim’s injuries because it did not make an express finding on the issue. The court’s rejection of Perez’s proximate cause contention necessarily implied that it found Perez to be the proximate cause of the victim’s injuries, and the record supports that finding. The conduct underlying the charge of leaving the scene of an accident resulting in serious bodily injury was Perez hitting the victim with his car. The crime for which Perez pleaded guilty arose from acts that injured the victim. Therefore, there was no error in this finding.

Perez next contended that vacation and sick leave are not compensable under the Restitution Act (the Act) because the loss of leave is not a pecuniary loss. The court of appeals concluded that expenditure of vacation and sick leave is a loss of employee benefits comparable to lost wages that is compensable under the Act.

Lastly, Perez contended that the court erred in calculating his restitution to the victim by five work days. The award of an additional five days of missed work was not supported by the record and results in a windfall to the victim, and must be reduced.

The order was affirmed in part and the case was remanded for reduction of the restitution award.

Summary provided courtesy of The Colorado Lawyer.

Bills Delaying Accrual of Property Tax Abatement Refund Interest, Encouraging Mental Health Treatment for Peace Officers, and More Signed

On Monday, April 24, 2017, the governor signed eight bills into law. To date, the governor has signed 166 bills this legislative session. Some of the bills signed Monday include a bill delaying the accrual date of the property tax abatement refund interest, a bill expanding consumer options in fingerprint-based background checks, and a bill allowing campus liquor licenses for on-campus consumption of alcoholic beverages. The bills signed Monday are summarized here.

  • HB 17-1049“Concerning the Elimination of Refund Interest Related to a Property Tax Abatement,” by Reps. Dan Thurlow & Matt Gray and Sen. Don Coram. If property taxes are levied erroneously or illegally and a taxpayer has not protested the valuation within the time permitted by law, then the taxpayer has 2 years from the start of the property tax year to file a petition for abatement or refund with interest. The bill delays the start of the refund interest so that it accrues from the date a complete abatement petition is filed, with the exception of an abatement or refund for taxes paid as a result of omitted property being added to the assessment roll.
  • HB 17-1115“Concerning the Establishment of Direct Primary Health Care Agreements to Operate without Regulation by the Division of Insurance,” by Reps. Perry Buck & Joann Ginal and Sens. Jack Tate & John Kefalas. The bill establishes parameters under which a direct primary care agreement may be implemented. An agreement may be entered into between a direct primary health care provider and a patient for the payment of a periodic fee and for a specified period of time. The provider must be a licensed, registered, or certified individual or entity authorized to provide primary care services.
  • HB 17-1120“Concerning the Designation of a Campus Liquor Complex on the Campus of an Institution of Higher Education that is Licensed to Serve Alcohol Beverages for Consumption on the Licensed Premises to Allow the Institution to Obtain Permits to Serve Alcohol Beverages at Other Facilities Within its Campus Liquor Complex, and, in Connection Therewith, Making an Appropriation,” by Rep. Yeulin Willett and Sen. Don Coram. The bill allows a higher education institution that has a license to serve alcohol beverages for on-premises consumption to apply for designation as a campus liquor complex, thereby allowing the institution to designate multiple facilities on the campus as locations for serving alcohol beverages.
  • HB 17-1184“Concerning Developing Additional Resources for Modern Technology Education in Public Schools,” by Rep. Crisanta Duran and Sen. Kevin Grantham. The bill directs the State Board of Education, in the course of revising the academic standards, to incorporate into the standards for each subject skills relating to the use of information and communications technologies to find, evaluate, create, and communicate information.
  • HB 17-1215“Concerning Mental Health Support for Peace Officers,” by Rep. James Coleman and Sens. Daniel Kagan & Bob Gardner. The bill encourages each sheriff’s office and each municipal police department to adopt a policy whereby mental health professionals, to the extent practicable, provide on-scene response services to support officers’ handling of persons with mental health disorders, and counseling services to officers.
  • SB 17-108“Concerning Continuation of the Regulation of Speech-Language Pathologists by the Director of the Division of Professions and Occupations, and, in Connection Therewith, Implementing the Recommendations of the 2016 Sunset Report of the Department of Regulatory Agencies,” by Sen. Larry Crowder and Rep. Janet Buckner. The bill extends the automatic termination date of the “Speech-language Pathology Practice Act” to September 1, 2022.
  • SB 17-189“Concerning Elimination of the Requirement that a Law Enforcement Agency is the Only Entity Authorized to Take Fingerprints for Purposes of a Background Check,” by Sen. John Cooke and Rep. Mike Foote. The bill removes the statutory requirement that a law enforcement agency is the only authorized entity able to take fingerprints for background checks. If an approved third party takes the person’s fingerprints, the fingerprints may be electronically captured using Colorado bureau of investigation-approved or federal bureau of investigation-approved livescan equipment.
  • SB 17-190“Concerning Prohibiting a Carrier from Setting Fees for a Dental Service that is Not Paid For by the Carrier,” by Sens. Dominick Moreno & Larry Crowder and Rep. Matt Gray. The bill prohibits a contract between a carrier and a dentist from requiring a dentist to provide services to a covered person at a fee set by, or subject to the approval of, the carrier unless the services are covered services under the person’s policy and the carrier provides payment for the service under the person’s policy in an amount that is reasonable and not nominal or de minimis.

For a complete list of the governor’s 2017 legislative decisions, click here.

Colorado Court of Appeals: Robberies Were Sufficiently Similar for Joinder of Criminal Trials

The Colorado Court of Appeals issued its opinion in People v. Butson on Thursday, April 20, 2017.

Bank RobberyJoinderSpecial ProsecutorStatements to PoliceSettlement NegotiationsCRE 408.

Butson was charged in three cases with bank robbery and conspiracy to commit bank robbery. Butson was interviewed by police, waived his Miranda rights, and provided details about the planning and commission of the robberies. He later moved to suppress his statements on the theory that he made them during the course of settlement discussions and therefore they were inadmissible at trial under CRE 408. The trial court denied the motion. Butson was also charged with witness tampering based on a letter he sent to a witness. Because the prosecutor in the bank robbery cases had handled the letter, Butson contended that he was entitled to a special prosecutor in all of his cases. The court determined that the prosecutor was not a potential witness in the witness tampering case and denied Butson’s request for a special prosecutor. The prosecution moved to join the three bank robbery cases for trial, which motion was granted, and a jury found Butson guilty of all but two counts. The witness tampering case was later dismissed.

On appeal, Butson first contended that the district court erred by joining the three bank robbery cases for trial. A trial court may try two or more criminal complaints together if the offenses could have been joined in a single complaint. Two or more offenses may be charged in the same charging document if the offenses are of the same or similar character or are based on two or more connected acts or transactions or are part of a common scheme or plan. Here, Butson and his sons committed all of the robberies during the course of a few months, all involved the same banks in relatively close proximity to each other, and all were sufficiently similar in planning and execution. Accordingly, the district court did not abuse its discretion in joining the cases for trial.

Butson next contended that where the lead prosecutor in the consolidated bank robbery cases was endorsed as a witness in the later-filed witness tampering case, the district court erred in denying his motion for a special prosecutor. Butson argued that a special prosecutor was necessary to prevent the appearance of impropriety created by the prosecutor’s potential appearance as a witness in the related witness tampering case. However, appearance of impropriety is not a basis for disqualification, and Butson failed to show any prejudice. The district court did not abuse its discretion in denying Butson’s motion for a special prosecutor.

Butson also contended that his statements to police during a custodial interrogation constituted settlement negotiations, or an offer to compromise a claim, and therefore the interview was inadmissible under CRE 408 to prove his guilt. Generally, Rule 408 bars the admission in a criminal proceeding of statements made in connection with the settlement of a civil claim. As Butson acknowledges, his statements to police, even if construed as an offer to compromise, were made during discussions concerning criminal charges, not a civil claim. Moreover, his statements, which he made to a government agent, would be admissible under an exception to the rule. Therefore, the district court did not err in denying his motion to suppress the statements.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Pattern of Abuse Convictions were Sentence Enhancers to Substantive Acts

The Colorado Court of Appeals issued its opinion in People v. Wiseman on Thursday, April 20, 2017.

Sexual Assault on a ChildIllegal SentencingConsecutive Sentences—Concurrent Sentences—Sentence EnhancersColorado Sex Offender Lifetime Supervision Act of 1998—Double Jeopardy—Due Process—Laches—Speedy Sentencing—Cruel and Unusual Punishment.

A jury found Wiseman guilty of acts constituting sexual assault on a child under the age of 15 by one in a position of trust. Wiseman received four sentences, three of which were to run consecutively, and one to run concurrent to two others. While Wiseman was incarcerated in the Department of Corrections (DOC), the district court, at the DOC’s request, reviewed his sentence and determined that consecutive terms were mandated by law on all four of his sentences. The effect of the court’s order was to increase Wiseman’s sentence to 46 years imprisonment.

On appeal, Wiseman contended that he was subject to, at most, two convictions and sentences in this case, and that the district court erred in determining that consecutive sentences were statutorily required. Counts seven and eight did not encompass “additional” substantive crimes for which one or more separate sentences could be imposed; they acted as mere sentence enhancers for counts one and three. Consequently, in entering separate convictions and sentences for counts seven and eight, the district court erred. As to the types of sentences, concurrent sentencing is required when offenses are supported by identical evidence. Here, Wiseman’s convictions were not supported by identical evidence and arose out of different incidents. Under the circumstances, Wiseman was subject to concurrent or consecutive sentencing, in the court’s discretion. The district court, therefore, erred in concluding that it was statutorily required to impose consecutive sentences.

Wiseman requested that the case be remanded for reinstatement of the original judgment of conviction and sentences. But Wiseman’s crimes were punishable by indeterminate sentencing under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). Thus, Wiseman’s original and revised sentences were both illegal, and a remand for the imposition of a “legal” indeterminate sentence under SOLSA is required: Wiseman must be sentenced for each conviction to an indeterminate sentence having a minimum term of a certain number of years and a maximum term of life imprisonment.

Wiseman objected to the imposition of another sentence that could expose him to the potential of serving life in prison. He asserted that imposing an indeterminate sentence at this point in time, over 15 years after he was initially sentenced, violated double jeopardy, due process, laches, speedy sentencing, and cruel and unusual punishment principles. Because Wiseman was put on notice by the statute that his offense would be subject to an indeterminate sentence, he lacked a legitimate expectation of finality in his original sentence. Thus, correcting the illegal sentence does not violate double jeopardy. There is no due process violation because Wiseman has no fundamental right to avoid serving a lawful sentence of which he should have been aware, and the State of Colorado has legitimate interests in the correct application of its laws and avoiding the precedential risk of irregular enforcement of its laws. The doctrine of laches is not applicable in the context of a Crim. P. 35(a) motion to correct an illegal sentence. The court of appeals found no basis on which Wiseman may assert that resentencing him would violate a constitutional right to speedy sentencing under Crim. P. 32(b). Lastly, the court disagreed that the imposition of a legal, indeterminate sentence would constitute cruel and unusual punishment because (1) Wiseman’s premise that he had an expectation that he would be immediately released on parole under his original sentence is wrong, and (2) such a claim cannot be predicated on the negligence of executive agencies or the courts in failing to impose or correct a sentence at a much earlier date.

The sentence was vacated and the case was remanded with instructions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Failure to Properly Advise Defendant of Immigration Consequences was Deficient Performance

The Colorado Court of Appeals issued its opinion in People v. Sifuentes on Thursday, April 20, 2017.

Felony—Plea Agreement—Immigration—Deportation—Ineffective Assistance of Counsel—Prejudice.

The prosecution charged defendant with distributing and conspiring to distribute a controlled substance, class three felonies. Defendant later pleaded guilty to an added count of distribution of a schedule III controlled substance as a class four felony, in exchange for dismissal of the original charges. The trial court sentenced defendant to Community Corrections (Comcor) for five years. Comcor, however, rejected defendant when Immigration and Customs Enforcement placed him on an immigration detainer following his conviction. The trial court therefore resentenced defendant to 42 months in prison followed by three years of mandatory parole. Unbeknownst to defendant and defense counsel, the conviction triggered automatic mandatory deportation under federal law.

Defendant filed a Crim. P. 35(c) petition for postconviction relief seeking to withdraw his guilty plea on the ground of ineffective assistance of his plea counsel based on the erroneous advice regarding deportation. The postconviction court denied the petition. Although the court agreed that plea counsel failed to properly advise defendant, it determined that defendant did not suffer prejudice because due to the purported evidence against him, even if defendant had known the consequences of his plea, it would not have been rational for him to reject the plea offer. The court further concluded that even if he had established prejudice, defendant was not entitled to relief due to the circumstances of his providency hearing.

On appeal, defendant contended that the district court erred in determining that his plea counsel’s deficient performance did not prejudice him. When an alien defendant enters a guilty plea based on erroneous representations as to deportation consequences, he will in most cases be permitted to withdraw the plea. Here, defendant presented some objective corroborating evidence of his prejudice claim (e.g., his plea counsel’s testimony confirming defendant’s concerns about deportation and her erroneous advice about deportation). Although the prosecution’s case against defendant appeared to be strong, it cannot be concluded that a conviction would have resulted if defendant went to trial. The court of appeals concluded that rejecting the guilty plea offer and going to trial would have been a rational decision for defendant. Because defendant established a reasonable probability that his plea counsel’s deficient performance affected the outcome of the plea process, he was allowed to withdraw his guilty plea.

The order was reversed and the case was remanded with directions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Warrantless Blood Draw on Unconscious Driver Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in People v. Hyde on Monday, April 17, 2017.

Searches and Seizures—Warrantless Blood Draw— Consent to Search.

In this interlocutory appeal, the Colorado Supreme Court considered whether a warrantless blood draw conducted on an unconscious driver pursuant to Colorado’s Expressed Consent Statute, C.R.S. § 42-4-1301.1, violates the Fourth Amendment’s prohibition on unreasonable searches. The court explained that by driving in Colorado, the driver consented to the terms of the statute, including its requirement that “[a]ny person who is dead or unconscious shall be tested to determine the alcohol or drug content of the person’s blood.” The court concluded that the driver’s prior statutory consent satisfied the consent exception to the warrant requirement under the Fourth Amendment; therefore, the blood draw conducted in this case was constitutional. Consequently, the court reversed the trial court’s order suppressing the blood-draw evidence.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: All Motorists in Colorado Consent to Colorado’s Expressed Consent Statute by Driving

The Colorado Supreme Court issued its opinion in People v. Simpson on Monday, April 17, 2017.

Searches and Seizures—Warrantless Blood Draw—Consent to Search.

Colorado’s Expressed Consent Statute, C.R.S. § 42-4-1301.1, provides that any motorist who drives on the roads of the state has consented to take a blood or breath test when requested to do so by a law enforcement officer with probable cause to suspect the motorist of driving under the influence. In this interlocutory appeal, the court reviewed the trial court’s ruling that an advisement accurately informing defendant of the statute amounted to coercion that rendered his consent to a blood test involuntary and required suppression of the test result. The court explained that by driving in Colorado, defendant consented to the terms of the statute, including its requirement that he submit to a blood draw under the circumstances present in this case. The court concluded that defendant’s prior statutory consent satisfied the consent exception to the warrant requirement under the Fourth Amendment; therefore, the blood test conducted in this case was constitutional. Consequently, the court reversed the trial court’s suppression of the test result.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Use of Refusal to Consent to Blood Test as Evidence Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in Fitzgerald v. People on Monday, April 17, 2017.

Searches and Seizures—Refusal to Submit to 12 Blood-Alcohol Testing—Admission of Refusal Evidence.

The Colorado Supreme Court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with the terms of Colorado’s Expressed Consent Statute, C.R.S. § 42-4-1301.1, violates the Fourth Amendment. Because the use of such refusal evidence does not impermissibly burden a defendant’s right to be free from unreasonable searches, the court concluded that the use of such refusal evidence does not violate the Fourth Amendment. The court therefore affirmed the judgment of the district court.

Summary provided courtesy of The Colorado Lawyer.

Bills Limiting Evidence in Groundwater Appeals, Expanding Juvenile Court Jurisdiction, and More Signed

On Tuesday, April 18, 2017, Governor Hickenlooper signed 11 bills into law. To date, he has signed 158 bills this legislative session. The bills signed Tuesday include a bill limiting the evidence that may be submitted in appeals from groundwater decisions, a bill expanding the exception for possession of sexually exploitative material to prosecutors and others involved in investigations, a bill giving the juvenile court jurisdiction to decide parental responsibilities issues in juvenile issues, and more. The bills signed Tuesday are summarized here.

  • HB 17-1012“Concerning the Creation of a Pueblo Chile License Plate,” by Rep. Daneya Esgar and Sen. Leroy Garcia. The bill creates the Pueblo chile special license plate. In addition to the standard motor vehicle fees, the plate requires 2 one-time fees of $25.
  • HB 17-1110“Concerning Juvenile Court Jurisdiction Regarding Matters Related to Parental Responsibilities in a Juvenile Delinquency Case,” by Rep. Susan Beckman and Sen. Nancy Todd. The bill allows the juvenile court to take jurisdiction involving a juvenile in a juvenile delinquency case and subsequently enter orders addressing parental responsibilities and parenting time and child support in certain circumstances.
  • HB 17-1138“Concerning the Reporting of Hate Crimes by Law Enforcement Agencies,” by Rep. Joseph Salazar and Sen. Angela Williams. The bill requires the Department of Public Safety to include in its annual hearing information concerning reports submitted by law enforcement agencies about crimes committed in the state during the previous year, including but not limited to information concerning reports of bias-motivated crimes.
  • HB 17-1174“Concerning the Establishment of an Exception for Rural Counties from the Limitations on the Establishment of a Local Improvement District to Fund the Construction of a Telecommunications Service Improvement for Advanced Service,” by Rep. James Wilson and Sens. Lucia Guzman & Larry Crowder. The bill allows a rural county with a population of fewer than 50,000 inhabitants to establish a local improvement district to fund an advanced service improvement in an unserved area of the county.
  • HB 17-1193“Concerning the Installation of Small Wireless Service Infrastructure within a Local Government’s Jurisdiction, and, in Connection Therewith, Clarifying that an Expedited Permitting Process Applies to Small Cell Facilities and Small Cell Networks and that the Rights-of-Way Access Afforded Telecommunications Providers Extends to Broadband Providers and to Small Cell Facilities and Small Cell Networks,” by Reps. Tracy Kraft-Tharp & Jon Becker and Sens. Andy Kerr & Jack Tate. The bill clarifies that the expedited permitting process established for broadband facilities applies to small cell facilities and small cell networks, and that the rights-of-way access afforded to telecommunications providers for the construction, maintenance, and operation of telecommunications and broadband facilities extend to broadband providers as well as small cell facilities and small cell networks.
  • SB 17-036“Concerning Groundwater,” by Sens. Don Coram & Ray Scott and Reps. Jon Becker & Jeni Arndt. The bill limits the evidence that a district court may consider, when reviewing a decision or action of the commission or state engineer on appeal, to the evidence presented to the commission or state engineer.
  • SB 17-068“Concerning Early Support for Student Success Through Access to School Counselors, and, in Connection Therewith, Serving All Grades Through the Behavioral Health Care Professional Matching Grant Program and the School Counselor Corps Grant Program,” by Sen. Nancy Todd and Rep. Jonathan Singer. The bill adds elementary schools to the list of public schools eligible to receive a grant through the behavioral health care professional matching grant program.
  • SB 17-088“Concerning the Criteria Used by a Health Insurer to Select Health Care Providers to Participate in the Insurer’s Network of Providers, and, in Connection Therewith, Making an Appropriation,” by Sens. Angela Williams & Chris Holbert and Reps. Kevin Van Winkle & Edie Hooten. The bill requires health insurers to develop and use standards for selecting participating providers for its network and tiering providers if the insurer carries a tiered network.
  • SB 17-112: “Concerning a Clarification of the Effect of Statutes of Limitations on the Dispute Resolution Process when a Taxpayer Owes Sales or Use Tax to One Local Government but has Erroneously Paid the Disputed Tax to Another Local Government,” by Sen. Tim Neville and Rep. Dan Pabon. The bill seeks to clarify the General Assembly’s intent when it enacted a dispute resolution process in 1985 to address a situation when a taxpayer paid a sales and use tax to one local government when it should have instead paid that disputed amount to a different local government.
  • SB 17-115“Concerning Possession of Sexually Exploitative Material by Persons Involved in Sexually Exploitative Material Cases,” by Sen. John Cooke and Reps. Mike Foote & Yeulin Willett. Under current law there is an exception to the crime of possession of sexually exploitative material for peace officers while in the performance of their duties. The bill expands the exception to a prosecutor, criminal investigator, crime analyst, or other individual who is employed by a law enforcement agency or district attorney’s office and performs or assists in investigative duties.
  • SB 17-137“Concerning the Continuation of the Colorado Health Service Corps Advisory Council,” by Sens. Nancy Todd & Michael Merrifield and Rep. Dominique Jackson. The bill continues the Colorado Health Service Corps Advisory Council indefinitely.

For a list of all of Governor Hickenlooper’s 2017 legislative decisions, click here.

Experience Interactive “People in Crisis” Exercise at the Criminal Law Spring Update

Often, people come to lawyers during a period of crisis, looking to their lawyer for assistance and comfort. Perhaps they are newly unemployed, or have lost a loved one, or are going through a contentious divorce. Or perhaps the client is experiencing poverty and all its attendant problems. While lawyers may be familiar intellectually with the statistics of poverty, many have not actually experienced it.

This year’s Criminal Law Spring Update is a unique interactive simulation of clients in crisis. Each participant will assume the role of a family member with limited resources. Some participants will be newly unemployed, some will have been recently deserted by the “breadwinner,” and some will be senior citizens living on fixed incomes or raising grandchildren. The participants will be tasked with providing for basic necessities and shelter with limited resources.

This program is designed to provide perspective to attorneys whose clients may be experiencing similar situations. The exercise will let participants experience some of the emotional stresses and frustrations created by having limited resources, as well as the difficult choices people with few resources feel they may need to make in order to survive. The program will begin with an introduction, move into the simulation, and then have a debriefing period in which participants will have the opportunity to share their experiences and talk about what they have learned during the exercise. The afternoon will be a more traditional CLE program, where we will discuss bond and sentencing issues, and how poverty affects these issues.

Register now for this unique opportunity to experience the effects of poverty on legal issues from the client’s perspective. Call (303) 860-0608 to register or click the links below.

 

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CLE Program: Criminal Law Spring Update – LIVE ONLY!

This CLE presentation will occur on May 2, 2017, at the Ralph L. Carr Judicial Center (2 E. 14th Ave. in Denver), from 9 a.m. to 4:45 p.m. Register for the live program here. You may also call (303) 860-0608 to register.

Colorado Supreme Court: Speedy Trial Deadlines Not Violated by Prosecution’s Requested Continuance

The Colorado Supreme Court issued its opinion in Mosley v. People on Monday, April 10, 2017.

Criminal Trials—Speedy Trial—Continuances.

The Colorado Supreme Court reviewed the Colorado Court of Appeals’ construction of Colorado’s speedy trial statute, C.R.S. § 18-1-405. The court rejected Mosley’s contention that the exclusions of time listed in subsection (6) of the statute apply only to the speedy trial calculation for an initial trial, and not for a new trial following reversal of a conviction on appeal under subsection (2). The court concluded that subsection (1) of the statute establishes the basic right to a speedy trial, and that subsection (2) clarifies that right by identifying the trial court’s receipt of the mandate as the event that triggers the six-month speedy trial period for a new trial following reversal of a conviction on appeal. Because a defendant’s speedy trial right—whether in an initial trial or on retrial—derives from subsection (1), the exclusions of time listed in subsection (6) apply to both an initial trial and a new trial following reversal of a conviction on appeal.

The court further rejected Mosley’s contention that the trial court erred in granting a continuance and extending the speedy trial deadline in this case. The court therefore affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court’s Grant of Continuance Did Not Violate Speedy Trial Act

The Colorado Supreme Court issued its opinion in Delacruz v. People on Monday, April 10, 2017.

Criminal Trials—Speedy Trial—Continuances.

The Colorado Supreme Court reviewed the Colorado Court of Appeals’ construction of Colorado’s speedy trial statute, C.R.S. § 18-1-405. Following Mosley v. People, 2017 15 CO 20, the court rejected Delacruz’s contention that the exclusions of time listed in subsection (6) of the statute apply only to the speedy trial calculation for an initial trial, and not for a new trial following reversal of a conviction on appeal. The court concluded that subsection (1) of the statute establishes the basic right to a speedy trial, and that subsection (2) clarifies that right by identifying the trial court’s receipt of the mandate as the event that triggers the six-month speedy trial period for a new trial following reversal of a conviction on appeal. Because a defendant’s speedy trial right—whether in an initial trial or on retrial—derives from subsection (1), the exclusions of time listed in subsection (6) apply to both an initial trial and a new trial following reversal of a conviction on appeal.

The court further rejected Delacruz’s contention that the trial court erred in granting a continuance and extending the speedy trial deadline in this case. The court therefore affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.