Colo. R. Crim. P. 48
Colo. R. Crim. P. 48
Committee Comment
This amendment to Crim. P. 48(b)(6)(I) is designed to bring this Rule into conformity with its corresponding statute, Section 18-1-405(6)(A), 8 B C.R.S. (1994 Supp.).
Annotation I. General Consideration. Law reviews. For article, "Criminal Procedure", which discusses a recent Tenth Circuit decision dealing with dismissal of indictments without prejudice, see 62 Den. U. L. Rev. 185 (1985). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses recent cases relating to speedy trials, see 15 Colo. Law. 1595 and 1617 (1986). For article, "The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado-Part I", see 31 Colo. Law. 115 (July 2002). For article, "The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado-Part II", see 31 Colo. Law. 59 (August 2002). Annotator's note. For other annotations concerning speedy trials, see § 16 of art. II, Colo. Const., and § 18-1-405 . Intent of rule. This rule was designed to render the federal and state constitutional rights to a speedy trial more effective. Sweet v. Myers, 200 Colo. 50, 612 P.2d 75 (1980); People v. Sanchez, 649 P.2d 1049 (Colo. 1982). An accused person's right to a speedy trial is ultimately grounded on the federal and state constitutions, and statutes relating to speedy trial are intended to render these constitutional guarantees more effective. Simakis v. District Court, 194 Colo. 436, 577 P.2d 3 (1978). This rule was designed to substantially conform to § 18-1-405 . Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975). Both simplify constitutional parameters. This rule and § 18-1-405 clarify and simplify the parameters of the constitutional right to a speedy trial. Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975); People v. Cisneros, 193 Colo. 141, 563 P.2d 355 (1977); People v. Chavez, 779 P.2d 375 (Colo. 1989). Policies underlying this rule and § 18-1-405 , are the same as those relative to the uniform mandatory disposition of detainers act, §§ 16-14-101 to 16-14-108 . People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978). Applied in People v. Flowers, 190 Colo. 453, 548 P.2d 918 (1976); Murphy v. District Court, 195 Colo. 149, 576 P.2d 163 (1978); Reliford v. People, 195 Colo. 549, 579 P.2d 1145 (1978); People v. District Court, 196 Colo. 420, 586 P.2d 1329 (1978); People v. Gonzales, 198 Colo. 546, 603 P.2d 139 (1979); People v. Wimer, 43 Colo. App. 237, 604 P.2d 1183 (1979); Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); People v. Small, 631 P.2d 148 (Colo. 1981); People v. Jones, 631 P.2d 1132 (Colo. 1981); People v. District Court, 632 P.2d 1022 (Colo. 1981); People v. Marquez, 644 P.2d 59 (Colo. App. 1981); People v. Velasquez, 641 P.2d 943 (Colo. 1982); People v. Ashton, 661 P.2d 291 (Colo. App. 1982); People v. Olds, 656 P.2d 705 (Colo. 1983); People v. Watson, 666 P.2d 1114 (Colo. App. 1983); People v. Harding, 671 P.2d 975 (Colo. App. 1983); People v. Castango, 674 P.2d 978 (Colo. App. 1983). II. By the State. District attorney's common-law power to enter nolle prosequi. Prior to the enactment of this rule, the common-law rule was that the district attorney had the power to enter a nolle prosequi in a criminal case without the consent of the court. People v. Lichtenstein, 630 P.2d 70 (Colo. 1981). Dismissal is function of district attorney. Neither the complaining witness nor the trial judge may dismiss a prosecution on behalf of the state; that is the function of the district attorney. People v. Dennis, 164 Colo. 163, 433 P.2d 339 (1967). Trial court's discretion in reviewing motion to dismiss. In exercising its discretion in reviewing a motion to dismiss charges, the trial court should not serve merely as a rubber stamp for the prosecutor's decision. People v. Lichtenstein, 630 P.2d 70 (Colo. 1981). The trial court's refusal to consent to a dismissal of charges is appropriate only where the evidence is clear and convincing that the interests of the defendant or the public are jeopardized by the district attorney's refusal to prosecute. People v. Lichtenstein, 630 P.2d 70 (Colo. 1981). III. By the Court. A. In General. Rule is independent of constitutional provisions. This rule is tied to the historical right and the inherent power of the court to dismiss a case for want of prosecution and is separate and independent of the constitutional right to a speedy trial. People ex rel. Coca v. District Court, 187 Colo. 280, 530 P.2d 958 (1975). The right to a speedy trial is guaranteed by § 16 of art. II, Colo. Const., and this constitutional protection is independent of any right established by statute or rule. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975). Provisions of this rule and the constitutional issue as to denial of speedy trial are mutually exclusive, and the resolution of one does not necessarily determine the resolution of the other. Potter v. District Court, 186 Colo. 1, 525 P.2d 429 (1974). The obvious purpose of this rule is to prevent "dillydallying" on the part of the district attorney or the court in a criminal proceeding. People v. Bates, 155 Colo. 277, 394 P.2d 134 (1964); Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971). Dismissal of charges sufficient to protect defendant's rights. Where defendant's trial took place within six months of defendant's plea of not guilty to the charges in the second indictment, and while the trial was not held until more than six months after defendant's plea to the charges of the original indictment, those charges were dismissed by the trial court, such dismissal was sufficient to protect defendant's rights under § 18-1-405 and section (b)(1) of this rule. People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976). Speedy trial is calculated separately for each criminal complaint. When charges in a complaint are properly dismissed within the speedy trial period without prejudice, they are a nullity. If defendant is arraigned under new charges, even if they are identical to the dismissed charges, the speedy trial period begins anew. Huang v. County Court of Douglas County, 98 P.3d 924 (Colo. App. 2003). No dismissal where not authorized by rule or due process. The trial court may not, on its own motion, dismiss an action on behalf of the defendant prior to trial over the objection of the district attorney where such dismissal is not authorized under the rules and is not required by due process. People v. Butz, 37 Colo. App. 212, 547 P.2d 262 (1975). Outrageous governmental conduct need not be prejudicial to defendant to constitute a violation of due process. People v. Auld, 815 P.2d 956 (Colo. App. 1991). Trial court had no authority to dismiss case based on the theory that it was an abuse of prosecutorial discretion to retry the case. A district attorney has broad discretion in determining who shall be prosecuted and what crimes shall be charged, and such discretion may not be controlled or limited by judicial intervention, except in unusual circumstances which result in a denial of a particular defendant's due process right to fundamental fairness. People v. Schwartz, 678 P.2d 1000 (Colo. 1984). Court's practice of postponing arraignment until all pretrial matters are concluded thwarts purpose of this rule and § 18-1-405 . People v. Chavez, 779 P.2d 375 (Colo. 1989). It is the joint responsibility of the district attorney and the trial court to assiduously avoid any occasion for a useless and unnecessary delay in the trial of a criminal case. People v. Murphy, 183 Colo. 106, 515 P.2d 107 (1973). Relief in nature of prohibition appropriate remedy. Relief in the nature of prohibition under C.A.R. 21, is an appropriate remedy when a district court is proceeding without jurisdiction to try a defendant in violation of his right to a speedy trial. Marquez v. District Court, 200 Colo. 55, 613 P.2d 1302 (1980). Relation of section (b) to Rule 248(b), C.M.C.R. Section (b) is the parallel rule to Rule 248(b), C.M.C.R. Bachicha v. Municipal Court, 41 Colo. App. 198, 581 P.2d 746 (1978). Uniform Mandatory Disposition of Detainers Act controls in conflict with rule. When there is a conflict with the general speedy trial provisions of the Uniform Mandatory Disposition of Detainers Act and this rule, the provisions of the uniform act control. People v. Swazo, 199 Colo. 486, 610 P.2d 1072 (1980). B. Right to Speedy Trial. Right to a speedy trial is not only for the benefit of the accused, but also for the protection of the public. It is essential that an early determination of guilt be made so that the innocent may be exonerated and the guilty punished. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971); People v. Martin, 732 P.2d 1210 (Colo. 1987). Speedy trial provisions are designed to foster more effective prisoner treatment and rehabilitation by eliminating, as expeditiously as possible, the uncertainties surrounding outstanding criminal charges. Simakis v. District Court, 194 Colo. 436, 577 P.2d 3 (1978). Court lacks jurisdiction to try defendant in violation of speedy trial right. A court would be proceeding without jurisdiction if it were to try criminal defendant in violation of his rights under the Colorado speedy trial statute and the rules of the Colorado supreme court. Hampton v. District Court, 199 Colo. 104, 605 P.2d 54 (1980). Determination of denial of speedy trial is judicial question. The question of determining when an accused has been denied a speedy trial under this rule, or under the constitution, is necessarily a judicial question. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971). Appealability. Where determination that delays in bringing defendant to trial involved resolutions of fact questions, the district attorney could not appeal such determinations. People v. Murphy, 183 Colo. 106, 515 P.2d 107 (1973). Speedy public trial is a relative concept requiring judicial determination on a case-by-case basis. Lucero v. People, 171 Colo. 167, 465 P.2d 504 (1970). Determined by circumstances of each case. A speedy public trial is a relative concept, because the circumstances of each case determine whether it has been afforded. Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969). The circumstances of each case must be examined to determine whether a speedy trial has been afforded, and in making this determination the court must consider the length of the pretrial delay, the reasons for it, whether the defendant has demanded a speedy trial, and whether any prejudice actually resulted to the defendant. All of these factors are interrelated and must be considered together with any other relevant circumstances. Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978). Such as defendant's understanding of when six-month period begins to run. Where defendant's expressed understanding was that the six-month period of the speedy trial statute would commence to run at the end of his continuance, the failure to try defendant within six months of the granting of the continuance does not entitle him to dismissal of charges. Baca v. District Court, 198 Colo. 486, 603 P.2d 940 (1979). The speedy trial statute (§ 18-1-405 ) is intended to implement the constitutional right to a speedy trial by requiring dismissal of the case whenever the defendant is not tried within the six-month period and the delay does not qualify for one of the express exclusionary categories set out in the statute. People v. Deason, 670 P.2d 792 (Colo. 1983). Section (b) and § 18-1-405 are virtually identical. Since section (b) of this rule is the procedural counterpart to the speedy trial statute and is virtually identical to § 18-1-405 , the resolution of a speed trial issue if the same whether the analysis proceeds from the statute or the rule. People v. Deason, 670 P.2d 792 (Colo. 1983). Section 18-1-405 refers to trial resolving ultimate guilt or innocence. The phrase "brought to trial on the issues raised by the ... information", as used in § 18-1-405 , refers to a trial which resolves the ultimate guilt or innocence of the accused as to the charges filed against him and not a sanity trial, even when the defendant pleads not guilty by reason of insanity. People v. Deason, 670 P.2d 792 (Colo. 1983). And commencement of a sanity trial is not the functional equivalent of a trial on the merits for purposes of satisfying the state's speedy trial obligation. People v. Deason, 670 P.2d 792 (Colo. 1983). Constitutional right to speedy trial not controlled by six-month statutory period. A defendant is not precluded from asserting her constitutional right to a speedy trial simply because the trial was held within the required statutory period; the defendant, however, has the burden of proving that her constitutional speedy trial right has been denied. Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978). Simply because a trial is held within six months, the defendant is not precluded from raising his right to a speedy public trial as embodied in § 16 of art. II, Colo. Const. Casias v. People, 160 Colo. 152, 415 P.2d 344, cert. denied, 385 U.S. 979, 87 S. Ct. 523, 17 L. Ed. 2d 441 (1966). For the six-month proscription of this rule defines the outside limits for prosecution. People v. Small, 177 Colo. 118, 493 P.2d 15 (1972). This rule is not a statement of the minimum time that must expire before a defendant can look for relief for denial of a speedy trial. People v. Mayes, 178 Colo. 429, 498 P.2d 1123 (1972). The six-month provision sets up a maximum limitation beyond which a defendant shall not be tried for the offense charged, provided the delay was not occasioned by his action or request. Casias v. People, 160 Colo. 152, 415 P.2d 344, cert. denied, 385 U.S. 979, 87 S. Ct. 523, 17 L. Ed. 2d 441 (1966). Prejudice to the defendant could dictate that a case be dismissed for failure to grant a speedy trial, even though the six-month period set forth in the rule has not expired. People v. Small, 177 Colo. 118, 493 P.2d 15 (1972). Six-month limitation begins to run. The six-month limitation of both § 18-1-405 and section (b)(1) of this rule runs from the date that defendant's plea is entered. People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976). Subsection (b)(1) plainly requires that the defendant be brought to trial within six months of the date upon which he enters a plea of not guilty to the charges set forth in the information. People v. Romero, 196 Colo. 520, 587 P.2d 789 (1978). The six-month period commences upon the arraignment for the last information. People v. Dunhill, 40 Colo. App. 137, 570 P.2d 1097 (1977). The six-month period, provided for in section (b), commences to run upon the defendant's arraignment on the last of three informations where two prior informations have been dismissed. People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978). Record to show compliance. The burden of establishing compliance with the speedy trial statute includes making a record sufficient for an appellate court to determine such statutory compliance. Marquez v. District Court, 200 Colo. 55, 613 P.2d 1302 (1980). Court cannot dismiss on own motion. Where defendant and counsel failed to appear at trial date, this rule does not authorize a district court, on its own motion, to dismiss a criminal case over the district attorney's objection, even though it appears that further prosecution will be useless and unnecessarily costly. People v. Hale, 194 Colo. 503, 573 P.2d 935 (1978). Speedy trial requirements apply in juvenile proceedings. Trial courts are bound by the statutory and constitutional speedy trial requirements in juvenile as well as adult proceedings; fundamental fairness requires no less. P.V. v. District Court, 199 Colo. 357, 609 P.2d 110 (1980). A trial court conducting a juvenile proceeding is bound by the same statutory and constitutional speedy trial requirements that are applicable in adult proceedings. People in Interest of T.F.B., 199 Colo. 474, 610 P.2d 501 (1980). But not in trial de novo for violation of ordinance. Six-month speedy trial rule does not apply in a trial de novo in the county court for violation of a municipal ordinance. Rainwater v. County Court, 43 Colo. App. 477, 604 P.2d 1195 (1979). Special time limitations of § 24-60-501 prevail, when conflicts arise, over the more general criminal procedure provisions of § 18-1-405 and this rule. Simakis v. District Court, 194 Colo. 436, 577 P.2d 3 (1978). Defendant must enter plea before he may take advantage of the restriction of § 18-1-405 and subsection (b) (1) of this rule. People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976). Where no plea has been entered, there has been no violation of the rule. Potter v. District Court, 186 Colo. 1, 525 P.2d 429 (1974). Defendant only required to move for dismissal. The burden of insuring compliance with the time requirements of section (b) is on the prosecution and the trial court, to the point that the only affirmative action required on the part of the defendant is that he move for a dismissal prior to trial. People v. Abeyta, 195 Colo. 338, 578 P.2d 645 (1978). To properly raise the question, the accused may apply for his discharge or for dismissal for lack of a speedy trial. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971). And must show he was not afforded speedy trial. A motion for discharge or for dismissal for want of due prosecution of a charge of crime must be sustained by the accused, as he has the burden of showing that he was not afforded a speedy trial. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971). The burden is upon the defendant to show that an expeditious trial was denied him. Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969); Ziatz v. People, 171 Colo. 58, 465 P.2d 406 (1970). The burden is upon the defendant to establish that he has been denied a speedy trial in violation of the statute or rule or that his constitutional right to a speedy trial requires dismissal. Saiz v. District Court, 189 Colo. 555, 542 P.2d 1293 (1975); People v. Chavez, 779 P.2d 375 (Colo. 1989). Although there is considerable delay in bringing the defendants to trial, such is immaterial where it is still accomplished within the six-month requirement, and defendants fail to meet the burden of showing they were denied an expeditious trial, and that they were prejudiced thereby. Casias v. Patterson, 398 F.2d 486 (10th Cir. 1968), cert. denied, 393 U.S. 1108, 89 S. Ct. 918, 21 L. Ed. 2d 804 (1969). Although not because bail is granted. The right to a speedy trial is not dissipated by the fact that the defendant is granted bail. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971). Consistent with court's trial docket. The burden is upon defendant who asserts denial of speedy trial to show facts establishing that, consistent with court's trial docket conditions, he could have been afforded trial. Rowse v. District Court, 180 Colo. 44, 502 P.2d 422 (1972). As a speedy trial envisions a public trial consistent with the court's business. Lucero v. People, 171 Colo. 167, 465 P.2d 504 (1970). The constitutional right to a speedy trial means a trial consistent with the court's business. People v. Mayes, 178 Colo. 429, 498 P.2d 1123 (1972). And not immediately after apprehension and indictment. Speedy public trial does not mean trial immediately after the accused is apprehended and indicted, but public trial consistent with the court's business. Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969). Congestion of docket must be considered. One circumstance to be considered in determining whether the defendant received a speedy trial is the extent of congestion of the docket of the trial court. Lucero v. People, 171 Colo. 167, 465 P.2d 504 (1970). Although it is clear that docket congestion would not warrant a retrial later than the three-month maximum period for delay caused by a mistrial, it is a factor in determining the reasonableness of the delay within the statutory and procedural time periods of § 18-1-405(6)(e) and section (b)(6)(V) of this rule. Pinelli v. District Court, 197 Colo. 555, 595 P.2d 225 (1979). When a trial court continues a case due to docket congestion, but makes a reasonable effort to reschedule within the speedy trial period, and defense counsel's scheduling conflict does not permit a new date within the speedy trial deadline, the resulting delay is attributable to defendant. The period of delay is excludable from time calculations for purposes of the applicable speedy trial provision. Hills v. Westminster Mun. Court, 245 P.3d 947 (Colo. 2011). Delays which are occasioned by a district attorney are to be considered by a trial court in determining whether defendant had been denied his constitutional right to a speedy trial. People v. Mayes, 178 Colo. 429, 498 P.2d 1123 (1972). Deliberate election of district attorney to postpone trial is denial. Where the facts clearly establish that a defendant was denied a speedy trial through no fault of his own and as a result of the deliberate election of the district attorney to postpone the trial, the defendant has been denied a speedy trial under the provisions of section (b) of this rule. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971). Delay caused by change of venue. When a change of venue is granted after arraignment, it is incumbent upon the prosecuting attorney to make a motion to obtain additional time to bring the defendant to trial because of the exceptional circumstances of the case, and the trial court must then make specific findings with respect to the justification. People v. Colantonio, 196 Colo. 242, 583 P.2d 919 (1978). State cannot dismiss and refile charges indiscriminately and avoid the mandate of this rule. Schiffner v. People, 173 Colo. 123, 476 P.2d 756 (1970). The prosecution cannot indiscriminately dismiss and refile charges in order to avoid the mandate of § 18-1-405 and section (b)(1) of this rule. People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976). And subsequent indictment charging same offense must be dismissed. Where defendant was charged with an offense in one indictment and was subject to jurisdiction of court for more than one year, a subsequent indictment charging the defendant with same offense had to be dismissed for lack of speedy trial. Rowse v. District Court, 180 Colo. 44, 502 P.2d 422 (1972). Provided defendant proves presecution's course of action. To be entitled to dismissal on these grounds, the defendant must affirmatively establish the existence of such a course of action on the part of the prosecution. People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976). The burden of establishing that the prosecution indiscriminately dismissed and refiled charges in order to avoid the mandate of § 18-1-405 and section (b)(1) of this rule is not satisfied by proof only that the district attorney sought and obtained a subsequent indictment for different offenses arising from the same transaction. People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976). But where actions of district attorney in refiling are result of change in circumstances which justify that action, no violation of this rule occurs. Schiffner v. People, 173 Colo. 123, 476 P.2d 756 (1970). As where federal sanctions are nullified after state action is dismissed. Where the district attorney was acting for the benefit of the defendant when he dismissed the original information based on the assumption that the defendant should not be punished twice for the same transaction, then when it becomes apparent that the defendant is to escape federal sanctions by reason of a technical objection, it is certainly proper for the district attorney to refile the state charges, and the actions of the district attorney are within the spirit of this rule. Schiffner v. People, 173 Colo. 123, 476 P.2d 756 (1970). Effect of prosecution's filing amended complaint. When the prosecution files an amended complaint charging new material after the defendant's initial guilty plea, the period of time for dismissal under the speedy trial provisions is measured from the second guilty plea unless the prosecution has shown bad faith in amending the complaint. If the amended complaint does not charge new material, the time period is measured from the original guilty plea. Amon v. People, 198 Colo. 172, 597 P.2d 569 (1979). Mistrials due to prosecutor's actions not treated differently. Neither subparagraph (b)(6)(V) of this rule nor § 18-1-405(6)(e), treats mistrials due to the prosecutor's actions differently from mistrials due to other reasons. People v. Erickson, 194 Colo. 557, 574 P.2d 504 (1978). For purposes of six-month period, new trial order similar to reversal. A new trial order pursuant to a new trial motion is similar to a reversal on appeal for purposes of the speedy trial provisions and results in a six-month speedy trial period. People v. Jamerson, 196 Colo. 63, 580 P.2d 805 (1978). Failure to demand dismissal waives speedy trial objection. Failure to bring defendant to trial within the allotted time does not automatically deprive the trial court of jurisdiction, because defendant's failure to demand dismissal prior to trial waives any speedy trial objection. People v. Anderson, 649 P.2d 720 (Colo. App. 1982). In accordance with the express language of § 18-1-405(5), defendant waived his right to a speedy trial by failing to move for dismissal of charges prior to entering a guilty plea. This did not, however, automatically waive the defendant's constitutional right to a speedy trial. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993). Delay caused by briefing and determining defendant's motion to dismiss properly charged to defendant. Williamsen v. People, 735 P.2d 176 (Colo. 1987). Determination that delay was caused by substitution of counsel not supported by record and not properly chargeable to defendant. Defendant's actions did not require a substitution of counsel, he was not counseled by the court on a need for a continuance, and court did not attempt to find other counsel who could meet the deadline. People ex rel. Gallagher v. District Court, 933 P.2d 583 (Colo. 1997). Express waiver or other affirmative conduct evidencing a waiver of the right to a speedy trial must be shown before a trial court may deny a dismissal motion. People v. Gallegos, 192 Colo. 450, 560 P.2d 93 (1977); Rance v. County Court, 193 Colo. 220, 564 P.2d 422 (1977); People v. Abeyta, 195 Colo. 338, 578 P.2d 645 (1978). Mere silence by a defense counsel to a trial setting beyond the speedy trial period shall not be construed as a waiver of a defendant's right to a speedy trial. Rance v. County Court, 193 Colo. 220, 564 P.2d 422 (1977); People v. Abeyta, 195 Colo. 338, 578 P.2d 645 (1978); People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978). Defendant's waiver limited. Where petitioner moved to continue his arraignment date, his written motion contained a statement to the effect that "the defendant waives his right to a speedy trial", this statement was intended only as a waiver of the right to challenge any speedy trial violation caused by the request for a continuance of the arraignment date and was not effective with respect to any subsequently occurring statutory speedy trial violation. Sweet v. Myers, 200 Colo. 50, 612 P.2d 75 (1980). Failure of each defendant to interpose any objection to a trial setting in county court beyond the six-month speedy trial period did not waive his right to a speedy trial. Rance v. County Court, 193 Colo. 220, 564 P.2d 422 (1977). Waiver after six-month period questionable. It is questionable whether a waiver of the right to a dismissal for failure to be granted a speedy trial could ever occur after the right to dismissal has already accrued. People v. Abeyta, 195 Colo. 338, 578 P.2d 645 (1978). Presence of defendant or counsel for subdivision (b)(6)(VII)(A) continuance. It is not clear under subdivision (b)(6)(VII)(A) of this rule whether the presence of the defendant or his counsel in open court is required. People v. Baker, 38 Colo. 101, 556 P.2d 90 (1976). Showing required by subdivision (b)(6)(VII)(A). Subdivision (b)(6)(VII)(A) 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. People v. Baker, 38 Colo. 101, 556 P.2d 90 (1976). C. Exclusion of Periods of Delay. Exclusion of delay caused by defendant. This rule excludes delay which is caused by, agreed to, or created at the instance of the defendant. Saiz v. District Court, 189 Colo. 555, 542 P.2d 1293 (1975). Where the delay has been initially caused by the defendant, he cannot invoke this rule. Lucero v. People, 171 Colo. 167, 465 P.2d 504 (1970). A defendant is not entitled to be discharged if he requests a postponement of his trial or otherwise causes the delay. People v. Bates, 155 Colo. 277, 394 P.2d 134 (1964). Where attributable to affirmative action by defendant. In computing the time within which a defendant must be brought to trial, in order for the delay to be charged to the defendant, it must be attributable to affirmative action on defendant's part, or to defendant's express consent to the delay, or to other affirmative conduct evidencing such consent. Tassett v. Yeager, 195 Colo. 190, 576 P.2d 558 (1978). An express consent to the delay or other affirmative conduct evidencing such consent must be shown before the delay is chargeable to the defendant. People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978). Since the six-month provision of this rule is conditioned upon the proposition that the delay is not caused by the action or request of the defendant. Lucero v. People, 171 Colo. 167, 465 P.2d 504 (1970). Factors authorized a continuance and thereby extended the speedy trial time where a period of delay was attributable to the inability of the prosecution, despite its exercise of due diligence, to obtain the victim's presence for trial and prosecution demonstrated the victim would be available to testify at a later date. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992). Period of delay was excluded from the speedy trial period under the provisions of subsection (b)(6)(III). The trial court did not abuse its discretion in refusing to grant a severance, therefore the continuance granted to the codefendant was chargeable to the defendant, and the defendant was not denied his right to a speedy trial. People v. Backus, 952 P.2d 846 (Colo. App. 1998). Exclusion applies to entire period fairly attributed to absence. The exclusion provision applicable to the defendant's voluntary absence or unavailability applies to the entire period of delay that may be fairly attributed to such absence. People v. Sanchez, 649 P.2d 1049 (Colo. 1982); People v. Gray, 710 P.2d 1149 (Colo. App. 1985). Defendant confined to mental institution. When a defendant is confined to a mental institution or hospital for observation or examination prior to a determination of mental competency, he cannot complain of a denial of his constitutional right to a speedy trial because of the delay occasioned by that confinement, People v. Jones, 677 P.2d 383 (Colo. App. 1983), aff'd in part, rev'd in part on other grounds, 711 P.2d 1270 (Colo. 1986). Excludable period may be longer than period of absence. The excludable period of delay resulting from defendant's absence, may, in some cases, be longer than merely the period of defendant's absence. People v. Alward, 654 P.2d 327 (Colo. App. 1982), cert. dismissed, 677 P.2d 948 (Colo. 1984). The period between a mistrial and commencement of a completed trial is properly excludable from the statutory speedy trial period requirement. People v. Martinez, 712 P.2d 1070 (Colo. App. 1985). Short delay is of no consequence where there have been numerous appearances already. The record is devoid of any showing that the trial was not held as soon as consistent with the court's business or that defendant suffered any prejudice by reason of the short delay when, between the date of charge and the date of trial, defendant, with his counsel, made numerous appearances in court to dispose of various pretrial matters. Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969). Prearrest delay excluded from computation. Subsection (b)(1) supports a motion to dismiss only when the delay occurs after charges are made or an arrest has been effected and is not directed to delay which transpires prior to arrest. People ex rel. Coca v. District Court, 187 Colo. 280, 530 P.2d 958 (1975). Where a complaint was filed against defendant and a warrant for his arrest was issued, but there was no evidence that defendant was in the county during the period between the complaint and his arrest, the defendant was not entitled to a dismissal under this rule. People v. Tull, 178 Colo. 151, 497 P.2d 3 (1972). Period tolled by defendant's failure to make court appearance. When a defendant fails to make a scheduled bond appearance before the trial court, the six-month speedy trial period is tolled until he makes himself available to the court, even where some of time that he is unavailable he is incarcerated in another jurisdiction. People v. Moye, 635 P.2d 194 (Colo. 1981). Where defendant's criminal behavior causes him to be in the penitentiary when his case is set for trial, the delay that occurs cannot be interpreted to be a violation of his constitutional rights. Scott v. People, 176 Colo. 289, 490 P.2d 1295 (1971). Period of delay caused by mistrial not included. The computation of the six-month period allowed for in section (b)(1) shall not include any period of delay caused by a mistrial, nor the extension provided following a mistrial, being part of the delay caused thereby. Pinelli v. District Court, 197 Colo. 555, 595 P.2d 225 (1979). The length of delay "caused by any mistrial" must be calculated to include the days on which the aborted trial or trials were in progress. People v. Erickson, 194 Colo. 557, 574 P.2d 504 (1978). Three-month exclusion following mistrial. Section 18-1 -405(6)(e) and subdivision (b)(6)(V) of this rule grant the prosecution a three-month exclusion in which to retry a case after a mistrial, provided that the delays are reasonable. People v. Pipkin, 655 P.2d 1360 (Colo. 1982); Mason v. People, 932 P.2d 1377 (Colo. 1997). The general assembly intended to grant no more than three months as an exclusion from the speedy trial period, which is one-half of the statutory speedy trial period, following a mistrial. People v. Pitkin, 655 P.2d 1360 (Colo. 1982). Whether jeopardy has attached is irrelevant. If the court is forced to dismiss the jurors, or prospective jurors, and reschedule the trial, whether jeopardy has yet attached is irrelevant in computing the length of delay excluded due to mistrial. People v. Erickson, 194 Colo. 557, 574 P.2d 504 (1978). Where continuances requested to effect plea bargain. A defendant was not denied a speedy trial when the trial was held more than one year after he was charged where the delay was occasioned, to a large extent, by the defendant who requested and obtained numerous continuances in an attempt to effectuate a plea bargain. Maynes v. People, 178 Colo. 88, 495 P.2d 551 (1972). Speedy trial period tolled by appeal. The period of time necessary to go through the appellate process, where the appeal stems from a dismissal upon the defendant's motion, tolls the statutory speedy trial period. People v. Jamerson, 198 Colo. 92, 596 P.2d 764 (1979). This rule excludes from the computation of the time for speedy trial purposes the period of delay caused by an interlocutory appeal, but an original proceeding under C.A.R. 21 is, technically speaking, not an interlocutory appeal. People v. Medina, 40 Colo. App. 490, 583 P.2d 293 (1978). And for filing of psychiatric reports. When a defendant pleads not guilty by reason of insanity, the period from the time of commitment until the filing of the final psychiatric report, if filed within a reasonable time, is excludable for purposes of the six-month period. People v. Renfrow, 193 Colo. 131, 564 P.2d 411 (1977). The defendant need not be committed to an institution for examination before a reasonable time can be excluded from the speedy trial computation for the filing of psychiatric reports. People v. Brown, 44 Colo. App. 397, 622 P.2d 573 (1980). Tactical decision to seek continuance chargeable to defendant, absent prosecutor's bad faith. For purposes of section (b), a tactical decision to seek a continuance is chargeable to the defendant in the absence of a showing of bad faith on the part of the prosecutor. People v. Medina, 40 Colo. App. 490, 583 P.2d 293 (1978). In the absence of a showing of bad faith on the part of the prosecutor in endorsing a witness on the day of the trial, the delay resulting from the defendant's tactical decision to seek a continuance as a result of the late endorsement is chargeable to her. People v. Steele, 193 Colo. 87, 563 P.2d 6 (1977). Defense counsel's action held tantamount to request for continuance. When defense counsel insists he could not try the case prior to expiration of the six-month speedy trial period, this is tantamount to a request for a continuance. People v. Chavez, 650 P.2d 1310 (Colo. App. 1982). Counsel may obtain continuance without defendant's consent. Defendant's attorney, without defendant's personal consent, may obtain a continuance of a trial setting subject to the discretion of the trial court,and the continuance will extend the speedy trial deadline an additional six months from the granting of the continuance. People v. Anderson, 649 P.2d 720 (Colo. App. 1982). Defendant's speedy trial rights were not violated when, in response to the testimony of defendant's mental health expert during a suppression hearing that defendant's statements were involuntary because of a mental disorder, prosecution requested, and was granted, three month continuance in order to arrange for expert testimony and analyze the alleged mental disorder. People v. Whalin, 885 P.2d 293 (Colo. App. 1994).