Paso County District Court No. 16CR1229 Honorable Jann P.
H. May, District Attorney, Jennifer Darby, Deputy District
Attorney, Tanya Karimi, Deputy District Attorney, Colorado
Springs, Colorado, for Plaintiff-Appellant.
Noble, Alternate Defense Counsel, Matthew Fredrickson,
Alternate Defense Counsel, Lakewood, Colorado, for
1 When the victim, who was under subpoena, failed to appear
at trial, the trial court denied the prosecution's
request for a continuance and dismissed the charges against
the defendant, Floyd Joseph Senette. The prosecution appeals
the trial court's dismissal of charges. Because we
conclude that the trial court abused its discretion in
denying the request for a continuance and the trial
court's dismissal was the consequence of that error, we
reverse and remand the case for further proceedings.
2 The prosecution charged Senette with aggravated robbery and
menacing, crimes he is alleged to have perpetrated against a
single victim: M.T. Senette pleaded not guilty on April 27,
2016, and trial was set for October 11, 2016, sixteen days
before the end of the six month statutory speedy trial
3 At a trial readiness conference four days before trial, the
prosecutor indicated that M.T. had not been in contact with
the prosecutor's office in quite some time even though
she had been personally served with a subpoena to attend
trial. The prosecutor said that if M.T. did not appear at
trial, she would request that the court issue a bench warrant
for M.T.'s arrest and that the trial be continued.
4 As expected, M.T. did not appear on the morning of trial.
The prosecutor requested a bench warrant and asked that the
case be continued for one week, still within the six-month
statutory speedy trial period. The prosecutor indicated to
the court that the People could not prove their case without
M.T.'s testimony. The court denied the request for a
continuance because the prosecutor provided no indication
that M.T. intended on cooperating. Then, at Senette's
request, the court dismissed the case.
5 As a threshold matter, we address our jurisdiction to
consider this appeal. Allison v. Engel, 2017 COA 43,
¶ 22 (court of appeals has duty to address its
jurisdiction even if not raised by the parties).
6 Prosecution appeals are permitted in Colorado by section
16-12-102, C.R.S. 2017. See People v. George, 2017
COA 75, ¶ 23. That statute provides that any order of a
court that "dismisses one or more counts of a charging
document prior to trial . . . [constitutes] a final order
that shall be immediately appealable." §
16-12-102(1). Here, the trial court dismissed the charges
against Senette prior to trial. Therefore, the statute vests
us with jurisdiction to consider the People's appeal
arising from that dismissal. III. Analysis ¶ 7 The
People argue that the trial court erred by denying its motion
for a continuance and dismissing the case. We agree with both
8 We review trial court's ruling on a motion to continue
for an abuse of discretion. People v. Ahuero, 2017
CO 90, ¶ 11. A trial court abuses its discretion if its
ruling is manifestly arbitrary, unreasonable, or unfair, or
is based on an erroneous ...