People v. Pipkin , 655 P.2d 1360 ( 1982 )

ERICKSON, Justice.

Pursuant to section 16-12-102, C.R.S. 1973 (now in 1978 Repl.Vol. 8), the district attorney has sought to have us interpret Crim.P. 48(b)(6)(V) and section 18-1-405(6)(e), C.R.S.1973 (now in 1978 Repl.Vol. 8), as granting the prosecution as much as three months to try an accused after a trial is concluded by the granting of a mistrial provided that the delay is reasonable and required by the circumstances occurring as a result of the mistrial. In our view, the interpretation urged by the district attorney may be proper under the circumstances of this case. Accordingly, we reverse the district court and remand with directions to reinstate the charges against the defendant and for further proceedings consistent with this opinion.

Both the statute and the rule provide that the following time period shall be excluded from the speedy trial time limitation: “The period of delay caused by any mistrial, not to exceed three months for each mistrial.” In this case, trial commenced on June 30,1981, and a mistrial was declared on July 1, 1981. Under section 18-1-405(1), C.R.S.1973 and Crim.P. 48(b)(1), the six-month limitation period would have expired July 2, 1981. Because of the mistrial, the prosecution may have had as long as three months to retry the case. A new trial was scheduled for July 27, 1981, and then because of court congestion, it was rescheduled for August 31, 1981.¹

Thereafter, based upon a motion of the district attorney and over the objection of the defendant, the trial was rescheduled for September 28, 1981. The defendant then moved for dismissal alleging that he had been denied his right to a speedy trial. The trial judge granted the motion relying on People v. Erickson, 194 Colo. 557, 574 P.2d 504 (1978). Based on the limited facts which are in the record in this case, we do not read People v. Erickson, supra, as mandating dismissal.

After a mistrial is granted and before the six month speedy trial limitation is considered, both the speedy trial statute and the rule allow the prosecution a period not to exceed three months to retry the defendant. Section 18-l-405(6)(e), C.R.S.1973; Crim.P. 48(b)(6)(V). Here the period of delay caused by the mistrial was from July 1, 1981 until September 28,1981. In our view, the delays which occurred, if caused by the mistrial, must be excluded from the speedy trial period if the delays were reasonable and were not longer than three months. In a sense, all of the delay in obtaining a retrial was caused by the mistrial. If a mistrial had not been declared the trial would have been completed on schedule. See People v. Sanchez, 649 P.2d 1049 (Colo.1982); Pinelli v. District Court, 197 Colo. 555, 595 P.2d 225 (1979).

In Pinelli v. District Court, supra, we said:

“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, cf. Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975), it is a factor in determining the reasonableness of the delay within the statutory and procedural time periods of section 18-l-405(6)(e), C.R.S.1973, and Crim.P. 48(b)(6)(V). See Rowse v. District Court, 180 Colo. 44, 502 P.2d 422 (1972). A delay of approximately two months cannot be said to be unreasonable under the circumstances of this case.”

197 Colo, at 557, 595 P.2d at 226. To determine “reasonableness,” each case must be considered on its own facts. People v. Colantonio, 196 Colo. 242, 583 P.2d 919 (1978).

In reviewing the speedy trial statute and the issues in this case, we take cognizance of the six-month extension granted for retrial of a defendant following a reversal of a conviction on appeal or after the defendant has requested and obtained a continuance. Sections 18-1-405(2) and (3), C.R.S. 1973 (now in 1978 Repl.Yol. 8); Crim.P. 48(b)(2) and (3). We also note that the American Bar Association Standards for Criminal Justice relating to speedy trial, which the General Assembly intended to implement in adopting the speedy trial statute, extend the statutory time period after a mistrial is granted: See II American Bar Association, Standards for Criminal Justice 12-2.1 (1980). Standard 12-2.2 provides:

“When time commences to run:

The time for trial should commence running, without demand by the defendant, as follows:

* * * * * *

(c) if the defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, then the time for trial should commence running from the date of the mistrial, order granting a new trial, or remand.”

II American Bar Association, Standards for Criminal Justice § 12-2.2 (1980).²

See also United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Ruester v. Turner, 250 So.2d 264 (Fla.1971); Note, The Right to a Speedy Criminal Trial, 57 Colum.L.Rev. 846 (1957). We are also aware of C.R.S.1963, 40-1-505, which contained language identical to the present statute. Notes to the 1963 statute state that the General Assembly intended to implement the Speedy Trial Standards in enacting that statute.

In our view, 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. We therefore find that section 18-1-405(6)(e) and Crim.P. 48(b)(6)(V) grant the prosecution a three month exclusion in which to retry a case after a mistrial, provided that the delays meet the reasonableness standard set forth in Pinelli v. District Court, supra. See also People v. Sanchez, supra.

We are unable to determine from the record, however, whether the trial delay resulting from the two post-mistrial continuances in this case was reasonable. The trial court, based on an inappropriately narrow reading of the statute and rule, concluded that these delays were not “caused by” the mistrial, and therefore did not reach the question of reasonableness. The issue of delay caused by the mistrial must be resolved to determine whether the rescheduling delays were reasonable under the circumstances so that they properly may be excluded from the six month speedy trial period.

We reject the defendant’s contention that dismissal of the charges is mandated by People v. Erickson, supra. There we held that extensions of the speedy trial period under the statute and the rule can be based on mistrials resulting from prosecutorial misconduct and that delay caused by two successive mistrials included the days on which the aborted trials were in progress. No issue was presented as to the reasonableness of the periods of delay. People v. Erickson, supra, is fully consistent with our holding in the case now before us. Reasonable delays up to three months based on a mistrial are to be excluded in determining whether speedy trial requirements have been met.

Accordingly, we reverse and remand with directions to reinstate the charges against the defendant and for further proceedings consistent with this opinion. If the delay in obtaining a retrial in this case was reasonable, the case should be set for immediate trial. If the delay was unreasonable, the charges should be dismissed.

QUINN, J., specially concurs. ROVIRA and DUBOFSKY, JJ., join in the special concurrence.

1 . Chronic trial congestion does not excuse the prosecution from bringing an accused to trial within the six-month period set out in section 18-1-405, C.R.S.1973. Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975); Pinelli v. District Court, 197 Colo. 555, 595 P.2d 225 (1979); II ABA, Standards for Criminal Justice § 12-2.3(b) (1980) (period of delay from trial congestion attributable to exceptional circumstances may be excludable).

2 . See also National Advisory Commission on Criminal Justice Standards and Goals, Corrections 4.10 (1973) (retrial following declaration of mistrial must take place within sixty days for felonies and thirty days for misdemeanors); National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure 722(d)(2) (1974) (retrial must take place within sixty days for felonies and thirty days for misdemeanors following final order for mistrial); The Speedy Trial Act of 1974, 18 U.S.C. § 3161-74 (1976) (new trial following a mistrial to begin within seventy days from the date the action occasioning the retrial becomes final); People v. Eickert, 124 Ill.App.2d 394, 260 N.E.2d 465 (1970); Caine v. State, 163 Ind.App. 381, 324 N.E.2d 525 (1975); State v. Thomas, 222 N.W.2d 488 (Iowa 1974).