Opinion
No. 75-591
Decided July 8, 1976. Rehearing denied July 29, 1976. Certiorari denied November 8, 1976.
Claiming he was deprived of his right to a speedy trial, defendant appealed conviction of possession of a narcotic drug and conspiracy to possess.
Reversed
1. CRIMINAL LAW — Speedy Trial — Ex Parte Continuance — Prosecution Witness Unavailable — Circumstances — Period Not Excludable — Six Month Period. Where on February 10, district attorney sought continuance ex parte of criminal trial scheduled for February 13 because material witness would not be available to testify on that date, but witness had been subpoenaed on January 30, and motion did not state when district attorney learned of the witness's unavailability nor gave any reasons why the witness's deposition could not have been taken between January 30 and February 10, the period of that continuance is not eligible for exclusion in determining whether the case was tried within six months as required by Crim. P. 48(b).
Appeal from the District Court of the County of Routt, Honorable Donald Lorenz, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, E. Ronald Beeks, Assistant Attorney General, for plaintiff-appellee.
Dennis W. Hartley, for defendant-appellant.
The defendant appeals his convictions of possession of a narcotic drug and conspiracy to possess narcotic drugs for sale. He contends that he was deprived of his right to a speedy trial under § 18-1-405, C.R.S. 1973, and Crim. P. 48(b). We agree, and, therefore, reverse the judgment.
The charges against the defendant were filed on May 17, 1974. On June 6, the defendant pleaded not guilty to all counts, and trial was set to commence on October 2, 1974.
In July, the public defender was permitted to withdraw on the ground that the defendant was not an indigent person. Private counsel was employed by the defendant, and on September 13, an order was entered reciting that the defendant's attorney would be unable to try the case in October, ordering that trial commence on December 19, and requiring that the defendant file a waiver of speedy trial. On September 20, the requisite waiver was filed.
For reasons not appearing in the record, the trial was subsequently rescheduled for February 13, 1975. On February 10, 1975, the district attorney filed a motion for continuance alleging that a material witness would be unable to attend on February 13 because of a hospitalization scheduled from February 12 to February 28. The continuance was granted by the trial court on February 10, and the trial date was reset for April 2, 1975. It is undisputed that this was an ex parte order.
On April 2, just prior to trial, the defendant moved to dismiss the case because of the ex parte continuance of February 10. He argues that the trial court's denial of this motion was error. See Penney v. People, 146 Colo. 95, 360 P.2d 671 (1961); Smith v. People, 8 Colo. 457, 8 P. 920 (1885); Crim. P. 48(b)(4). The attorney general contends that the written waiver of speedy trial disposes of the issue, and that, in any event, the provisions of Crim. P. 48(b)(6)(VII)(A) justify the ex parte continuance granted by the trial court.
The written waiver of speedy trial was filed for the sole purpose of obtaining a trial date beyond the six-month limitation of Crim. P. 48(b)(1). Under subsection (3) of the rule, the waiver extended the time for trial an additional six months, and the critical date after which this period would expire was March 20, 1975. See People v. Flowers, 190 Colo. 453, 548 P.2d 918 (1976).
[1] Hence, the April 2 trial date was beyond the statutory limitation, unless, under Crim. P. 48(b)(6)(VII)(A), the duration of the ex parte continuance was excludable from the additional six-month period. That subdivision of the rule provides that "a continuance granted at the request of the prosecuting attorney, without the consent of the defendant," is to be excluded from the pertinent speedy trial period if:
"The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at the later date . . . ."
It is not clear under this provision of the rule whether the presence of the defendant or his counsel in open court is required. Cf. Crim. P. 48(b)(4). Assuming, however, that an ex parte continuance may be granted on these grounds, the rule nevertheless requires a showing not only that the evidence is material and unavailable, but also that the prosecuting attorney has exercised due diligence to obtain it. Here, the district attorney failed to show the exercise of due diligence.
The motion shows on its face that the witness was subpoenaed on January 30, 1975. The motion was filed on February 10. However, the motion does not state when the district attorney learned of the unavailability of this witness. Neither are any reasons given in the motion why the witness's deposition could not have been taken between January 30 and February 10. See Crim. P. 15. Therefore, the requirements of Crim. P. 48(b)(6)(VII)(A) were not satisfied, and the delay beyond March 20 cannot properly be excluded from the operation of Crim. P. 48(b)(1) and (3).
The judgment is reversed and the cause is remanded with directions that the information be dismissed and the defendant be discharged.
JUDGE COYTE and JUDGE VAN CISE concur.