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People v. Senette

Court of Appeals of Colorado, Second Division

July 26, 2018

The People of the State of Colorado, Plaintiff-Appellant,
v.
Floyd Joseph Senette, Defendant-Appellee.

          El Paso County District Court No. 16CR1229 Honorable Jann P. DuBois, Judge

          Daniel H. May, District Attorney, Jennifer Darby, Deputy District Attorney, Tanya Karimi, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellant.

          Antony Noble, Alternate Defense Counsel, Matthew Fredrickson, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellee.

          OPINION

          WELLING JUDGE

         ¶ 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.

         I. Background

         ¶ 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 period.

         ¶ 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.

         II. Jurisdiction

         ¶ 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 contentions.

         A. Continuance

         ¶ 8 We review trial court's ruling on a motion to continue for an abuse of discretion. People v. Ahuero, 2017 CO 90, ΒΆ 11. A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or is based on an erroneous ...


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