In any uncertain time, such as this, those recently arrested or on bond with a pending criminal case may question how their cases will be affected. In this brief post, we will attempt to answer questions fielded from our clients thus far and others we anticipate will arise during the COVID-19 pandemic.
Statute of Limitations: This will not likely affect your case. In Colorado, there are varying statutes of limitations that are codified in C.R.S.A. § 16-5-401. This statute begins:
“Except as otherwise provided by statute applicable to specific offenses, delinquent acts, or circumstances, no adult person or juvenile shall be prosecuted, tried, or punished for any offense or delinquent act unless the indictment, information, complaint, or petition in delinquency is filed in a court of competent jurisdiction or a summons and complaint or penalty assessment notice is served upon the defendant or juvenile within the period of time after the commission of the offense or delinquent act as specified.”
It delineates certain crimes that have no statute of limitations attached (sex crimes, murder, etc.) and runs down to petty offenses that have a 6-month statute. Additionally, there are several exceptions that allow the prosecution of most crimes to continue:
- The time limitations imposed by this section shall be tolled if the adult offender or juvenile is absent from the state of Colorado, and the duration of such absence, not to exceed five years, shall be excluded from the computation of the time;
- The period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the adult defendant or juvenile for the same conduct, even if the indictment, information, complaint, or petition in delinquency which commences the prosecution is quashed or the proceedings thereon are set aside or are reversed on appeal;
- The period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the adult defendant or juvenile for the same conduct, even if filed in a court without jurisdiction, when based on a reasonable belief the court possesses jurisdiction;
- The period within which a prosecution must be commenced begins to run upon discovery of the criminal act or the delinquent act for a long list of crimes.
In short, don’t assume the statute of limitations will come into play in your case.
Right to a Speedy Trial: This issue could come into play in your matter, but it’s not likely your best defense. Every defendant has the right to a speedy trial as codified in C.R.S.A. § 18-1-405. This section states:
“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.”
On its face, it would seem clear that, if not brought to trial within six months of one’s not guilty plea, the charges must be dismissed. There are many exceptions to this rule as well, however, including:
- The defendant did not object on the record to a date outside of six months;
- 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;
- When 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;
- 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.
The period of delay resulting from the “unavailability” of the defendant when his whereabouts are known, but his presence for trial cannot be obtained, could be used during this pandemic. One can imagine the maneuvers a skilled prosecutor is able undertake to continue a case well beyond that six-month timeframe. In short, a speedy trial issue is almost never your best defense.
In summary, while TV and movies can highlight the above issues as the sharpest blow of the most skilled defense attorney, real criminal attorneys know that there is no “get out of jail free” card. What an individual charged with a crime needs is an experienced criminal attorney that knows how to begin working a case before charges are filed. There are endless strategic decisions and maneuvers an experienced attorney can make on your behalf. And there are even more ways you can find yourself being charged with Felony Tampering with a Witness by trying to be your own attorney. You wouldn’t try to treat your own medical issues – don’t try and solve your own legal issues.Call Cantafio Nagel & Song PLLC for a free consultation today.