Can a defendant who pleads guilty to either a felony or a misdemeanor be denied the absence of prejudice on appeal from a guilty plea?

As we discussed in the context of a constitutional speedy trial right, a defendant who pleads guilty to either a felony or a misdemeanor concedes the absence of prejudice. Because the appeal of a claimed statutory speedy trial violation likewise requires a showing of prejudice, a reviewing court is precluded by a defendant's guilty plea, in either a felony or misdemeanor prosecution, from "weigh[ing] the effect of the delay in bringing defendant to trial or the fairness of the subsequent trial itself." (People v. Wilson, supra, 60 Cal.2d at p. 151, 32 Cal.Rptr. 44, 383 P.2d 452.) Simply stated, a statutory speedy trial violation does not survive a guilty plea, regardless of whether that plea is to a felony or a misdemeanor.

In Avila v. Municipal Court, supra, 148 Cal.App.3d at page 812, 196 Cal.Rptr. 286, the court reached the opposite conclusion, holding the "denial of the statutory right to a speedy trial ( [ ] 1382) is a cognizable issue on appeal from a judgment of conviction following a plea of guilty or nolo contendere to a misdemeanor." In so holding, the court attempted to distinguish between misdemeanor and felony convictions following guilty pleas for purposes of applying a different standard of appellate review of speedy trial issues. The court noted when a felony is dismissed for violation of section 1382, the prosecution may refile the same charge, but once a misdemeanor has been dismissed under that provision, it cannot be filed again. Thus, the court reasoned, "a section 1382 error requires reversal and dismissal of a misdemeanor conviction without any showing of prejudice [citation] and has nothing to do with guilt or innocence." (Avila v. Municipal Court, supra, 148 Cal.App.3d at p. 812, 196 Cal.Rptr. 286.)