dissenting.
Today, the majority concludes that when the municipal court offered Hills a trial date within the speedy trial period but his counsel was unavailable on that date, the resulting delay was attributable to Hills and extended the speedy trial period, notwithstanding Hills' possible availability on other dates within the speedy trial period. Because I do not agree with the legal premise on which the majority's decision is based, and because I believe that the delay in this case was due to the municipal court's congested docket and not to any action or request of Hills, I respectfully dissent.
I. Background
I generally agree with the majority's recitation of the relevant facts. Several additional facts, however, warrant mention.
First, although at the April 11, 2007 conference, the municipal court offered and Hills rejected five trial dates, there is no indication in the record that the City was available on any of those dates. Moreover, the City was unavailable on June 1, a date on which Hills was available.
Second, as the majority correctly notes, at the April 11, 2007 conference, Hills' counsel advised the court that Hills' new counsel was available for trial on June 1, 8, 15, and 22, and the court set the trial for June 8. When the court's congested docket forced it to continue the trial on June 8, however, the court made no effort to determine whether Hills was still available on June 15 and 22, and there is nothing in the record to indicate that he was not. Instead, the court stated that its first available trial date was July 6, suggesting that the court's docket prevented it from *1227trying the case on either June 15 or 22. Hills counsel, however, was unavailable on July 6, and the record does not indicate whether the City was available that day. Without inquiring further as to the parties' availability for trial on any other date within the speedy trial period, the court then set the trial for August 3, beyond the speedy trial deadline, and Hills reiterated his speedy trial objection.
II. Discussion
It is well settled that the trial court and the prosecuting attorney bear the burden of compliance with the applicable speedy trial requirements. See Marquez v. District Court, 200 Colo. 55, 57, 613 P.2d 1302, 1303-04 (1980). Although cases involving speedy trial questions necessarily turn on their particular facts and must be considered on an ad hoc basis, Williamsen v. People, 735 P.2d 176, 180 (Colo.1987); People v. Colantonio, 196 Colo. 242, 244, 583 P.2d 919, 921 (1978), decisions of our supreme court and of divisions of this court provide guidance for determining whether particular delays are chargeable to a defendant and thus excluded from the speedy trial calculation. For example, delays are chargeable to a defendant where the defendant either agreed to or requested such delays, including where the court proposes a trial date within the speedy trial period but the defendant specifically requests a later date. See Colantonio, 196 Colo. at 248-44, 583 P.2d at 921; People v. Bates, 155 Colo. 277, 281, 894 P.2d 134, 136-37 (1964); People v. Hamer, 689 P.2d 1147, 1150 (Colo.App.1984). Likewise, delays are chargeable to a defendant where the defendant or his counsel requests a certain trial date to accommodate his or her schedule. See People v. Luevano, 670 P.2d 1, 2 n. 1 (Colo.1983); People v. Bell, 669 P.2d 1881, 1384 (Colo.1988); People v. Fetty, 650 P.2d 541, 544 (Colo.1982). Delays are also charged to a defendant where the delays resulted from the defendant's efforts to comply with the terms of a deferred judgment or to satisfy the conditions of a pending plea bargain. See Luevano, 670 P.2d at 3; Bell, 669 P.2d at 1384; Alley v. Kal, 44 Colo.App. 561, 563, 616 P.2d 191, 192 (1980). Finally, delays are chargeable to a defendant where the defendant's last-minute motion delayed the trial pending resolution of that motion. See Willtiamsen, 785 P.2d at 180.
On the other hand, delays in bringing a defendant to trial are not chargeable to the defendant where the delay was occasioned by a court's congested docket. See Bell, 669 P.2d at 1885-86 (fact that trial court was occupied by another trial on date of the defendant's plea hearing did not relieve the district attorney and the trial court of their joint obligation to bring the defendant to trial before the speedy trial deadline); Carr v. District Court, 190 Colo. 125, 126, 543 P.2d 1253, 1254 (1975) ("We hold that chronic trial congestion does not excuse the [trial court's] failure to bring these petitioners to trial within [the statutory speedy trial period]."). This general principle, however, is subject to the exception in C.M.C.R. 248(b) for trials set within the last ten days of the speedy trial period where a continuance became necessary, a cireumstance not present here. See People ex rel. Freed v. County Court, 42 Colo.App. 272, 274-75, 592 P.2d 1355, 1357-58 (1979). Likewise, delays are not chargeable to a defendant where the delay resulted from the prosecution's request for a continuance. See Marques, 200 Colo. at 57-58, 618 P.2d at 1808-04.
In addition to the foregoing, our supreme court has made clear that a delay caused by a defendant's counsel's rejection of proposed trial dates "is not the type of delay contemplated by the speedy trial statute or the rule," and thus is not chargeable to the defendant. Tasset v. Yeager, 195 Colo. 190, 192, 576 P.2d 558, 559 (1978). This is particularly true where the defendant could have been brought to trial within the speedy trial period but for the prosecution's requests for continuances or the court's refusal to set the trial within that time period. Id. at 192, 576 P.2d at 560. Where, however, the record demonstrates that defense counsel is unavailable for trial on any date within the speedy trial period, the court will deem the defendant to have moved for a continuance, and the delay will be attributed to him or her. See People v. Chavez, 650 P.2d 1310, 1311 (Colo.App.1982) ("[WJhen defense counsel insisted he could not try the case prior to expiration of the [speedy trial period], we *1228hold this to be tantamount to a request for a continuance.").
Here, the majority concludes that when the municipal court offered the July 6 trial date and Hills' counsel rejected it due to his schedule, the resulting delay was attributable to Hills. I disagree with this conclusion for several reasons.
First, this conclusion is directly contrary to our supreme court's unequivocal statement in Tasset, 195 Colo. at 192, 576 P.2d at 559, that delay caused by a defendant's counsel's rejection of proposed trial dates is not the type of delay contemplated by the speedy trial rule and is not chargeable to the defendant.
Second, in reaching its conclusion, the majority appears to deem irrelevant certain facts that I believe to be dispositive: (1) Hills was previously available on several other dates within the speedy trial period; (2) there is nothing in the record to indicate that, as of June 8, he was no longer available on those other dates; (8) because of its congested docket, the municipal court made no effort to determine whether Hills was available on those or any dates within the speedy trial period other than July 6; (4) there is no indication as to whether the City was even available on July 6; and (5) Hills never asked for a trial date beyond the speedy trial deadline but rather consistently asserted his speedy trial rights. These facts persuade me that even absent Tassef, the delay at issue was not attributable to Hills, and I believe that the majority's holding is contrary to the settled principle that the trial court is responsible for complying with speedy trial requirements. Moreover, with the possible exception of People v. Wilson, 972 P.2d 701 (Colo.App.1998), which as discussed below is distinguishable on its facts and, in my view, was wrongly decided, the cases on which the majority relies do not support the conclusion that it reaches.
In Bates, 155 Colo. at 281, 394 P.2d at 186-87, for example, when the court proposed a date within the speedy trial period, defense counsel specifically asked the court for a later date and then agreed to the later date that the court proposed. On these facts, defense counsel clearly was responsible for the delay, because he expressly requested and then acquiesced in it. Id.
Similarly, in Fetty, 650 P.2d at 544, defense counsel expressly requested a trial date beyond the speedy trial deadline "for scheduling purposes." On such facts, as in Bates, the court properly attributed the delay to the defendant. Id.
Finally, in Chavez, 650 P.2d at 1311, the court was available for trial prior to the expiration of the speedy trial deadline, but defense counsel insisted that he was unavailable on any date within the speedy trial period. On such facts, the court properly construed defense counsel's unavailability on any day within the speedy trial period to be "tantamount to a request for a continuance." Id.
In my view, none of these cases stands for the proposition that whenever a court offers a defendant a trial date within the speedy trial period and the defendant is unavailable, the resulting delay is chargeable to the defendant, regardless of whether the defendant was available on other dates within the speedy trial period, and regardless of whether the court's docket congestion prevented the court from setting the trial on such dates. Moreover, each of these cases is readily distinguishable from the case before us.
Unlike in Bates and Fetty, for example, Hills' counsel did not expressly request a date beyond the speedy trial period. To the contrary, he steadfastly maintained his speedy trial objections, and, unlike the majority, I cannot construe any of his actions as a request for delay beyond the speedy trial deadline.
Similarly, unlike Chavez, this is not a case in which Hills' counsel was unavailable on any day within the speedy trial period. To the contrary, at least as of April 11, he was available and offered several dates during the requisite period. When the court continued the June 8 trial, however, it made no effort to schedule the trial for any of those dates. Nor did it even inquire as to Hills counsel's continued availability on those dates. Rather, because of the court's congested docket, the court offered only one date within the speedy trial period, and when Hills' counsel was unavailable on that date, it set the trial for a date beyond the speedy trial deadline.
*1229On these facts, I believe, as did the district court, that the delay at issue was attributable to the court's docket congestion. Moreover, in my view, the rule that the majority adopts today could lead to absurd results. Imagine, for example, a scenario in which there are 60 days in the speedy trial period, the defendant is available on 59 of those days, and, because of the court's congested docket, the court is only able to offer the defendant the one day on which he or she is unavailable. Under the rule that the majority espouses, in this see-nario, the court could set the trial beyond the speedy trial deadline and the delay would be charged to the defendant. I believe that such a result would ignore the reality that the inability to bring the defendant to trial within the speedy trial period was clearly due to the court's docket, and it would render illusory the long-settled obligation of the court to ensure compliance with speedy trial requirements.
I concede that Wilson, on which the majority principally relies, appears to support the rule that the majority today applies. In my view, however, Wilson is distinguishable on its facts and, in any event, was wrongly decided.
In Wilson, 972 P.2d at 704, the court continued a scheduled trial because of docket congestion. On the rescheduled trial date, the court was again forced to continue the trial because of its docket. The court proposed a new date that was one day before the speedy trial deadline, but defense counsel was unavailable. The defendant then moved to dismiss on speedy trial grounds, because the court could not bring his case to trial within the speedy trial period. The court denied the motion, finding that it was the equivalent of a request by the defendant for a continuance, and the defendant subsequently appealed. Id. at 705.
On appeal, unlike here, the defendant conceded that his counsel's inability to be present for trial on the date proposed by the court was a delay caused at his instance and was thus excludable from the speedy trial period. Id. at 704-05. Relying in part on this significant concession, the absence of which distinguishes the present case from Wilson, the division affirmed the trial court's ruling. Id. at 705.
With all due respect to the division in Wilson, I believe that its conclusion was incorrect for two reasons. First, in reaching its determination, the division did not address Tassel, 195 Colo. at 192, 576 P.2d at 559, in which the supreme court stated that delay caused by a defendant's counsel's rejection of proposed trial dates is not the type of delay contemplated by the speedy trial rule and is not chargeable to the defendant. Second, the division relied principally on Chavez. As noted above, however, Chavez turned on the fact that defense counsel was unavailable on any day within the speedy trial period. Chavez did not address the situation present here and in Wilson, where defense counsel was available on other dates within the speedy trial period. Accordingly, in my view, Wilson misconstrued Chaves and, thus, reached the wrong result.
For these reasons, because I believe the delay at issue in this case was due to the municipal court's docket congestion and not to any action or request by Hills, I would affirm the district court's conclusion that the municipal court violated Hills' speedy trial rights and its order remanding the case to the municipal court for dismissal of the charges against Hills Accordingly, I respectfully dissent.