Stewart v. Superior Court

California Court of Appeal Apr 26, 1955 No. Civ. 20955Published

Before: Vallee

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Holding. The court held that a defendant who waives the 60-day statutory period for trial by consenting to a later date does not waive their constitutional right to a speedy trial, but a subsequent 40-day continuance due to court congestion was not unreasonable.

Issues

Did the petitioner waive his right to be brought to trial within the 60-day period by consenting to a trial date beyond that limit?
Was the 40-day continuance granted by the trial court unreasonable under the circumstances, thereby violating the defendant's right to a speedy trial?

Disposition. denied

Quotations verified verbatim against the opinion

“Since petitioner expressly consented to the cause being set for trial on March 1, 1955, he waived his right to be brought to trial within the 60-day period.”

“We are of the opinion that the time intervening between March 3, the last agreed trial date, and April 12, when the trial was to have commenced, was not unreasonable.”

VALLÉE, J.

Petitioner seeks a peremptory writ of mandamus commanding the superior court to dismiss a criminal

[537]

action pending against him on the ground he has not been brought to trial within 60 days after the filing of the information as required by section 1382 of the Penal Code.

On December 30, 1954 an information was filed charging petitioner with the crime of burglary. On December 31 he was arraigned, pleaded not guilty, and his trial was set for March 1, 1955. March 1, 1955 was the 61st day after the filing of the information. At the time the cause was set for trial defendant and his counsel waived “time for trial.” On March 1 petitioner answered he was ready for trial, but the court continued the trial to March 2; and on that date it continued the trial to March 3. On March 3 petitioner refused to consent to a continuance and moved the court to dismiss the action pursuant to section 1382 of the Penal Code. The motion was denied and the trial was continued to March 4. On March 4 petitioner again refused to consent to a continuance and moved the dismissal of the action. The motion was denied, the trial was continued to April 12, and defendant was released on his own recognizance. The ground for each continuance was that there was no department of the superior court available for trial of petitioner’s cause. Section 1382 of the Penal Code provides:

“The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: ... 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial in a superior court within 60 days after the . . . filing of the information. . . .”

The right of a defendant to a trial within the 60-day period may be waived.

(People

Greene,

108 Cal.App.2d 136, 140 [238 P.2d 616].) The consent of a defendant that his trial be set for a date beyond the 60-day limit is equivalent to a postponement upon his application within the meaning of section 1382.

(People

Stewart v. Superior Court

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