Colorado Court of Appeals - 11-23-11 criminal decision - People v. Mosely

People v. Mosley                        Speedy Trial

Facts: A jury convicted Mr. Mosely of multiple counts of sexual assault on a child. A panel of the Court of Appeals reversed the conviction, and sent the case back to the trial court for a re-trial. When the trial court re-set the case for trial, the trail court set it beyond the six-month deadline from the mandate required by C.R.S. § 18-1-405(2). The trial court received the mandate on September 19, 2007, and thus, according to subsection 2, the trial must commence by March 19, 2007. However, the trial court continued the case for appearance of counsel to October 22 and 25, 2007. On October 29, 2077, Mr. Mosley waived his right to speedy trial. Based upon the waiver, the trial court determined that speedy ended on April 29, 2008, and re-set the trial on April 8, 2008. On March 31, 2008, the prosecution moved to continue the trial. Over the objection of the defense, the trial court granted the continuance, and moved the re-trial to June 17, 2008. The Court of Appeals noted over and over that defense counsel acquiesced to the application of the time exclusions found in C.R.S. § 18-1-405(6), even though the plain language of C.R.S. § 18-1-405(2) does not allow any exclusions of time from the six-month speedy trial period. Subsequent to the mistrial, defense counsel argued the explicit language of C.R.S. § 18-1-405(2) mandates dismissal – the first time defense counsel argued subsection 2 according to the Court of Appeals. The trial court agreed, and dismissed the case.

Issue: Whether the plain language of C.R.S. § 18-1-405(2) - “If trial results in conviction which is reversed on appeal, any new trial must be commenced within six months after the date of the receipt by the trial court of the mandate from the appellate court.” - is ambiguous?

Held: Inexplicitly, yes.

Reasoning: The Court found the language to be ambiguous because C.R.S. § 18-1-405(2) left the accused without a remedy if the trial court exceeded the six-month period required by statute. Thus, the Court claimed it needed to give meaning to the subsection, and in doing so, read all the exclusions of time found in C.R.S. § 18-1-405(6) into C.R.S. § 18-1-405(2). Thus, the Court of Appeals reversed the trial court's ruling, and reinstated the charges against Mr. Mosely. The Court completely avoided the jurisdiction issue – that the legislature did not use ambiguous language because the trial court loses jurisdiction if it does not hold the re-trial within six months. Instead, the Court re-wrote C.R.S. § 18-1-405(2) to be complicated and weaselly, and hence, identical to C.R.S. § 18-1-405(1). 


C.R.S. § 18-1-405(1) reads, “Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty, he shall be discharged from custody if he has not been admitted to bail, and, whether in custody or on bail, the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode.” Thus, C.R.S. § 18-1-405(1) explicitly contains all the exclusions of time in C.R.S. § 18-1-405(6), which reads:

In computing the time within which a defendant shall be brought to trial as provided in subsection (1) of this

section, the following periods of time shall be excluded:

(a) Any period during which the defendant is incompetent to stand trial, or is unable to appear by reason of illness or physical disability, or is under observation or examination at any time after the issue of the defendant's mental condition, insanity, incompetency, or impaired mental condition is raised;

(b) The period of delay caused by an interlocutory appeal whether commenced by the defendant or by the prosecution;

(c) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance;

(d) The period of delay resulting from the voluntary absence or unavailability of the defendant; however, a defendant shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained, or he resists being returned to the state for trial;

(e) The period of delay caused by any mistrial, not to exceed three months for each mistrial;

(f) The period of any delay caused at the instance of the defendant;

(g) The period of delay not exceeding six months resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant, if:

(I) 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 this evidence will be available at the later date; or

(II) The continuance is granted to allow the prosecuting attorney additional time in felony cases to prepare the state's case and additional time is justified because of exceptional circumstances of the case and the court enters specific findings with respect to the justification;

(h) The period of delay between the new date set for trial following the expiration of the time periods excluded by paragraphs (a), (b), (c), (d), and (f) of this subsection (6), not to exceed three months;

(i) The period of delay between the filing of a motion pursuant to section 18-1-202(11) and any decision by the court regarding such motion, and if such decision by the court transfers the case to another county, the period of delay until the first appearance of all the parties in a court of appropriate jurisdiction in the county to which the case has been transferred, and in such event the provisions of subsection (7) of this section shall apply.