IN THE COUNTY COURT, COUNTY OF DENVER,
STATE OF COLORADO
IN THE MATTER OF THE PEOPLE OF § Case No….
THE STATE OF COLORADO, §
Plaintiff, §
- § MOTION TO DISMISS
Persona 1, §
Defendant. §
Pursuant to Rule 48 of the Colorado Rules of Criminal Procedure, Defendant hereby moves the Court to dismiss Plaintiff’s Complaint with prejudice. The bases for this Motion are set forth in the accompanying Memorandum.
Dated this ___ day of __________, _____.
Persona 1
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IN THE COUNTY COURT, COUNTY OF DENVER,
STATE OF COLORADO
IN THE MATTER OF THE PEOPLE OF § Case No. ….
THE STATE OF COLORADO, §
Plaintiff, §
- § MEMORANDUM IN SUPPORT OF
- MOTION TO DISMISS
Persona 1, §
Defendant. §
- STATEMENT OF FACTS
- On May 2, 2019, Defendant was arrested for the offence of 2nd degree assault contrary to Section 18-3-203(1)(g), C.R.S.
- The particulars of the alleged offence are that on or about February 10, 2019, Defendant, with intent to cause bodily injury to another, unlawfully and feloniously caused serious bodily injury to Persona 2.
- It is alleged that Defendant struck Persona 2 in the face, head, neck and back at least four times, bit Persona 2 on the left side of his torso under his armpit, pinned Persona 2 to a metal bookcase, and kicked Persona 2.
- Defendant was charged with one count of 2nd degree assault in violation of Section 18-3-203(1)(g), C.R.S.
- Defendant pleaded not guilty to the charge.
- ARGUMENTS
- Violation of Defendant’s Sixth Amendment Rights
- The Sixth Amendment of the U.S. Constitution states as follows: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
- In Barker v Wingo, 407 U.S. 514 (1972), U.S. Supreme Court outlined factors to be considered when determining whether a defendant’s constitutional right to a speedy trial under the Sixth Amendment has been violated. They include: length of and reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
- Since arrest of Defendant, his right to a speedy trial has been violated.
- Defendant was arrested on 5/2/2019. Due to gross negligence, officer executed a defective and invalid warrant of arrest. Time was wasted in ensuring the validity of the warrant of arrest by the officer.
- On 5/3/2019, Defendant was arraigned in court. On that day, two advisements were held because of gross negligence evidenced in the sworn statements given by the officers. The documents filed to charge me were misleading and had a lot of missing information.
- On 6/11/2019, two preliminary hearings were held. This was a waste of time by my public defender and the prosecution as well.
- On 7/09/2019, two other preliminary hearings were held. Again, this was a waste of time by the prosecution.
- On 7/16/2019, Defendant attended an after the fact hearing for removal of GPS tracker. The hearing was supposed to take place 14 days earlier. No reason was given for the delay.
- Defendant was arraigned again on 08/29/2019 and 09/26/2019. This was a deliberate attempt by the prosecution to delay trial since no reason was given.
- Two preliminary conferences were held on 01/31/2020 and another one on 10/23/2020. This was a waste of time by the prosecution.
- Five final dispositions were held on 10/31/2019, 04/03/2020, 06/04/2020, 07/09/2020, and 08/13/2020. This amounts to waste of time, unreasonable delay, and failure to prosecute.
- Burden of Compliance with Speedy Trial Requirement
- The burden of compliance with the speedy trial requirement rests upon the prosecution and the court. This means that the prosecution and the court are mandated to guarantee the right to speedy trial under the Sixth Amendment of the Constitution. Courts have upheld this rule.
- In Barker v Wingo, 407 U.S. 514, 527 (1972), the U.S. Supreme Court held thus:
“Defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, … society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect the interest.”
- In re People v. DeGreat, the Colorado Supreme Court held as follows:
“Indeed, in the speedy trial context, the only affirmative action required on the part of the defendant is that he move for a dismissal prior to trial. DeGreat did take that step, and the district court should have granted his motion. To suggest that it was incumbent upon DeGreat to do more to safeguard his rights under the statute flies in the face of our speedy trial jurisprudence.
That brings us to our second point. It is well-settled law that the burden of compliance with the speedy trial requirement rests with the prosecution and the trial court.”
- Defendant should not suffer because prosecution and the trial court failed to protect his right to speedy trial under the Sixth Amendment. This case has been going on for 22 months, largely attributed to delays by the prosecution.
- The only affirmative action required on the part of Defendant Christian is to move for a dismissal prior to trial, as he has done in this Motion to Dismiss.
- Violation of CO Rev Stat § 18-1-405 (2016)
- CO Rev Stat § 18-1-405(1) stipulates as follows:
“Except as 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 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.”
- 22 months after Defendant Christian entered plea, he still hasn’t been brought to trial.
- In compliance with CO Rev Stat § 18-1-405(1), the pending charges against Defendant Christian should be dismissed, and he should never be charged again for this offence or another offence based on the events of this offence.
- PRAYER FOR RELIEF
REASONS WHEREFORE, Defendant prays for the dismissal of charges brought by the prosecution.
Respectfully Submitted,
______________________________
Persona 1
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:
(Name of Prosecutor), Attorney at Law
Respectfully Submitted,
______________________________
Persona 1
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NOTICE OF MOTION TO DISMISS
You are notified that on ____________________ (date), at __________ (time), or as soon thereafter as Defendant can be heard, in Courtroom _____ of the County Court, County of Denver, State of Colorado Courthouse at 1437 Bannock St, Denver, CO 80202-5337. Defendant will bring on for hearing his Motion to Dismiss.
Respectfully Submitted,
______________________________
Persona 1
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