Corr v. District Court In and For Eighth Judicial Dist. of State of Colo., 82SA604

• Decision Date: 04 April 1983
• Docket Number: No. 82SA604,82SA604
• Citation: 661 P.2d 668
• Parties: Kenneth J. CORR, Petitioner, v. The DISTRICT COURT In and For the EIGHTH JUDICIAL DISTRICT OF the STATE OF COLORADO, and the Honorable John A. Price, one of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 668

661 P.2d 668

Kenneth J. CORR, Petitioner, v. The DISTRICT COURT In and For the EIGHTH JUDICIAL DISTRICT

OF the STATE OF COLORADO, and the Honorable John

A. Price, one of the Judges Thereof, Respondents.

No. 82SA604.

Supreme Court of Colorado,

En Banc.

April 4, 1983.

David Vela, Colorado State Public Defender, James S. Dostal, Steven R. Gayle, Deputy State Public Defenders, Denver, for petitioner.

Stuart A. VanMeveren, Dist. Atty., Loren B. Schall, Asst. Dist. Atty., Fort Collins, for respondents.

QUINN, Justice.

In this original proceeding petitioner Kenneth J. Corr seeks relief in the nature of prohibition in connection with a felony charge of possession of a marijuana concentrate pending against him in the Larimer County District Court. ¹ Corr claims that the prosecution of this charge is barred by the compulsory joinder statute, section 18-1-408(2), C.R.S.1973 (1978 Repl.Vol. 8), by reason of his earlier guilty plea to the offense of driving under the influence of alcohol. We issued a rule to show cause, and we now make the rule absolute.

I.

On June 12, 1982, at approximately 2:09 a.m., Officer Harold Dean of the Fort Collins Police Department clocked Corr driving an automobile on College Avenue in Fort Collins at 56 miles per hour in a 35 miles per hour zone. Officer Dean followed Corr's vehicle and watched it weave across three traffic lanes, without directional signal or apparent reason. The officer signalled Corr to stop the vehicle, and Corr complied. Noting a strong odor of alcohol on Corr's breath as he checked his license and registration, the officer asked him to perform a roadside sobriety test. When Corr performed the various maneuvers unsatisfactorily, Officer Dean placed him under arrest for driving under the influence. In searching Corr's pockets incident to the arrest the officer seized a plastic bag containing a small brown nodule which was subsequently identified as "hashish" or marijuana concentrate.

Corr was prosecuted on three charges. Two of the charges, speeding ² and driving under the influence, ³ were initiated by the officer's issuance to Corr of a summons and complaint under the simplified procedure for prosecution of misdemeanors in county court. Section 16-2-101 et seq., C.R.S.1973 (1978 Repl.Vol. 8). ⁴ A pretrial conference was held on these two charges in the Larimer County Court on October 18, 1982. Pursuant to a plea bargain Corr entered a guilty plea to the charge of driving under the influence in exchange for the dismissal of the speeding charge and the entry of a deferred judgment and sentence on an unrelated charge of driving under suspension. ⁵

The third charge, possession of a marijuana concentrate, was prosecuted in a separate proceeding. Before Corr had entered a guilty plea to the driving under the influence charge, the district attorney for the eighth judicial district had filed, on June 30, 1982, an information in the Larimer County District Court charging Corr with possession of a marijuana concentrate on June 12, 1982. A preliminary hearing was held before the district court on August 18, 1982, at which the court concluded that probable cause existed. Later, on October 20, 1982, the court conducted a hearing on Corr's motion to suppress the marijuana concentrate seized by Officer Dean during the June 12th arrest. In the course of his suppression testimony, Officer Dean estimated the time span between the initial stop and the seizure of the marijuana at approximately eleven minutes. The motion to suppress was denied.

On October 22, 1982, after Corr had pled guilty to the charge of driving under the influence in the Larimer County Court, he filed in the Larimer County District Court a motion to dismiss the marijuana charge on the ground that, by reason of his earlier guilty plea in the county court, the compulsory joinder statute barred any further prosecution on the marijuana charge. A hearing was held on this motion on November 3, 1982. The court considered the evidence elicited at the suppression hearing and took judicial notice of the two county court cases involved in Corr's earlier plea bargain. During the hearing the People conceded that three of the five requirements of the compulsory joinder statute were present, namely: several offenses were committed within the same judicial district; there was a pending prosecution against Corr; and Corr had previously been subjected to "a single prosecution." The People argued, however, that two requirements of the statutory bar were not met because (1) the district attorney did not know of all the charges at the time the prosecution was commenced, and (2) all the charges did not arise out of the same criminal episode. The court agreed with the People's second contention and denied the motion to dismiss. It ruled that although the offenses were closely related in time, the prosecution of the marijuana charge was not barred because it was based on facts different from those underlying the offenses of speeding and driving under the influence. ⁶ We conclude that all of the requisites of the compulsory joinder statute are present here, and that further prosecution of the defendant on the pending marijuana charge is barred.

II.

Section 18-1-408(2), C.R.S.1973 (1978 Repl.Vol. 8), provides as follows:

"If the several offenses are known to the district attorney at the time of commencing the prosecution and were committed within his judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution."

We recently discussed the purposes of the compulsory joinder statute in Jeffrey v. District Court, 626 P.2d 631 (Colo.1981), and outlined the statutory elements which must be satisfied in order to activate the prohibition against a subsequent prosecution:

"The purposes of compulsory joinder are to protect the accused against the oppressive effect of sequential prosecutions based on conduct occurring during the same criminal episode and to conserve judicial and legal resources that otherwise would be wasted in duplicative proceedings. [Citations omitted.] The statute can be broken down into the following elements, all of which must be satisfied in order for the bar to apply to a subsequent prosecution: (1) several offenses committed within the same judicial district; (2) a prosecution against the offender; (3) prosecutorial knowledge of the several offenses at the commencement of the prosecution; (4) the several offenses arising from the same criminal episode; and (5) the offender previously having been subjected to a single prosecution." Id. at 637.

An examination of each of these elements persuades us that the conditions for the application of the statutory bar have been satisfied.

A.

It is not disputed that all the offenses filed against Corr were committed within the same judicial district. Each offense occurred in Larimer County, which is within the eighth judicial district, section 13-5-109(1), C.R.S.1973, and all offenses constituted violations of state law. At the hearing on Corr's motion to dismiss, the deputy district attorney conceded that this initial requirement of the statute was satisfied.

B.

The deputy district attorney also conceded at the dismissal hearing that the second requirement of the statute was established: a prosecution against Corr. This prosecution was pursuant to the simplified procedures for misdemeanor offenses, as evidenced by the summons and complaint issued by Officer Dean on January 12, 1982, and filed with the Larimer County Court.

C.

The third requirement of section 18-1-408(2), which was not conceded, is that the various offenses must have been known to the district attorney "at the time of commencing the prosecution." The respondent argues that this element was not satisfied because the district attorney could not have known of the county court prosecution commenced by Officer Dean's issuance of the summons and complaint. We addressed and resolved a similar argument in Jeffrey v. District Court, supra, where we stated:

"The critical inquiry here is whether the requirement of prosecutorial knowledge refers to that stage of the criminal proceeding at which a charging document is filed or, instead, to the stage at which jeopardy attaches. We construe the statutory language to mean prosecutorial knowledge at the commencement of the jeopardy phase of the criminal prosecution.

"Under simplified procedures it is not likely that the district attorney would know of the initiation of criminal proceedings by the peace officer's issuance of a summons and complaint. Even with felony filings under Crim.P. 5 and 7, it is conceivable that the district attorney, either because of incomplete investigation or inadvertence, might initiate a prosecution for less than all of the offenses arising from the same criminal episode. A construction of section 18-1-408(2) that permits multiple prosecutions for a series of acts arising from the same criminal episode merely because of prosecutorial lack of knowledge at the filing stage of the first case frustrates the salutary purpose of the joinder requirement. Such a construction rewards prosecutorial inattention to the joinder issue and adds to the accused's burden of defense by prolonging the anxiety and increasing the expenses associated with multiple prosecutions. Furthermore, it proliferates, rather than alleviates, the unnecessary expenditure of criminal justice resources on duplicative prosecutions, the issues of which readily can be resolved in a single case....

"The overriding purposes of the joinder requirement are achieved by a focus on prosecutorial knowledge at that stage of the initial prosecution at which jeopardy commences. If, at that point, the...