People v. Anderson

KELLY, Judge,

dissenting.

I respectfully dissent. I disagree with the majority’s interpretation of § 16-14-104, C.R.S.1973 (1978 Repl.Vol. 8).

The Uniform Mandatory Disposition of Detainers Act authorizes an incarcerated defendant to demand and receive a speedy disposition of charges pending against him. The provisions of the Act must, therefore, be interpreted as governing the course of the proceedings as between a defendant and the State, and not between a defendant and his own counsel. Accordingly, § 16-14-104 authorizes a grant of “additional time ... for good cause shown” upon the request of the prosecuting official only. See People v. Swazo, 199 Colo. 486, 610 P.2d 1072 (1980).

Where, as here, a defendant has personally invoked the application of the Act, it is my view that his counsel’s request for a continuance must be accompanied by the defendant’s written authorization. I do not regard this as an onerous burden in view of the purposes to be served by the Uniform Mandatory Disposition of Detainers Act.

For similar reasons, I agree with the defendant’s second contention that the provisions of § 18-1-405, C.R.S.1973 (1978 Repl. Vol. 8) and Crim.P. 48 require dismissal of the charges. As the majority states, these statutes are intended to effectuate the constitutional right to a speedy trial. See Simakis v. District Court, 194 Colo. 436, 577 P.2d 3 (1978). I am unable to relegate the right to a speedy trial to a quasi-constitutional status which allows an attorney to effect a waiver of the constitutional right without the defendant’s knowing and intelligent action. Accordingly, again, I would hold that an attorney’s request for a continuance beyond the statutory period requires his client’s written authorization.

Neither can I rule that there has been a waiver here as a result of the defendant’s request for a continuance, there being nothing in the record to show that the defendant knew his actions could constitute a waiver of his constitutional and statutory rights. See II ABA, Standards for Criminal Justice 12-2.3 (2d ed. 1980).

I am unable to narrow the holdings in Carr v. District Court, 190 Colo. 125, 543 P.2d 1253 (1975) and Hampton v. District Court, 199 Colo. 104, 605 P.2d 54 (1980) as the majority has done. I regard both these cases as authority for the proposition that a defendant is entitled to a discharge upon failure of the State to bring him to trial in a timely manner. Moreover, the defendant’s motion for a continuance made on December 10, four days after the speedy trial time had run, does not affect his right to discharge. Muller v. State, 387 So.2d 1037 (Fla.App.1980); see People v. Abeyta, 195 Colo. 338, 578 P.2d 645 (1978).

I would reverse and discharge the defendant.