Jeffrey v. District Court In and For Eighth Judicial Dist., 80SA476

Citation626 P.2d 631
Decision Date23 March 1981
Docket NumberNo. 80SA476,80SA476
PartiesRalph JEFFREY, Petitioner, v. The DISTRICT COURT In and For the EIGHTH JUDICIAL DISTRICT of the State of Colorado, and the Honorable John-David Sullivan, one of the Judges Thereof, Respondents.
CourtSupreme Court of Colorado

J. Gregory Walta, Colo. State Public Defender, David D. Wymore, Steven R. Gayle, Deputy State Public Defenders, Fort Collins, for petitioner.

Stuart A. Van Meveren, Dist. Atty., Loren B. Schall, Asst. Dist. Atty., Stephen J. Roy, Deputy Dist. Atty., Fort Collins, for respondents.

QUINN, Justice.

In this original proceeding under C.A.R. 21, petitioner Ralph Jeffrey (petitioner) seeks relief in the nature of prohibition in connection with criminal charges of first degree criminal trespass, section 18-4-502, C.R.S.1973 (1978 Repl. Vol. 8), and conspiracy to commit that crime, sections 18-2-201 and 18-4-502, C.R.S.1973 (1978 Repl. Vol. 8), presently pending against him in the district court of Larimer County. Petitioner claims that the prosecution of these charges is barred by the compulsory joinder provisions of section 18-1-408(2), C.R.S.1973 (1978 Repl. Vol. 8). We issued a rule to show cause and we now make the rule absolute.

I.

The facts underlying this proceeding may be summarized from the preliminary hearing and a subsequent hearing on the petitioner's motion to dismiss. The petitioner was acquainted with Gary Ryder. Ryder learned that the woman with whom he had been living for about a year, Vada Kay Fansler, and the infant he had allegedly fathered by her were residing with another man, Clint Rice, in Rice's house trailer located at 901 West 10th Street in Loveland, Colorado. Ryder became angry at the news and on May 10, 1980, he drove over to the Rice trailer with the petitioner and two others for the purpose of assaulting Rice and removing the child from the residence.

Entry was gained to the trailer by breaking a screen and window on the front door. Ryder entered the trailer first and chased Rice through the trailer and into a nearby yard where he assaulted him. The petitioner then entered the trailer, forcibly took the child from Fansler, striking her in the process, and left the residence.

Officer Martinez of the Larimer County Sheriff's Department was dispatched to investigate the disturbance. On May 12, 1980, he issued a summons and complaint to the petitioner for third degree assault against Fansler, a class one misdemeanor, section 18-3-204, C.R.S.1973 (1978 Repl. Vol. 8). The summons and complaint ordered the petitioner to appear in the Larimer County Court on June 24, 1980, to answer the charge. 1 This charging document was issued pursuant to the statutory simplified procedures for the prosecution of misdemeanors. Section 16-2-101 et seq., C.R.S.1973 (1978 Repl. Vol. 8). The officer also filed a copy of the summons and complaint with the Larimer County Court, which is in the eighth judicial district, and provided the office of the district attorney for that judicial district with a copy of that document, as required by statute. 2 Three days later on May 15, a deputy district attorney for the eighth judicial district filed a direct information in the respondent district court charging the petitioner with the felonies of first degree criminal trespass against the dwelling of Rice on May 10, 1980, and conspiracy to commit first degree criminal trespass on the same day. 3

On June 24, 1980, the petitioner appeared pro se in the Larimer County Court. A deputy district attorney for the eighth judicial district appearing on behalf of the people executed a written stipulation with the petitioner that upon the petitioner's plea of guilty to third degree assault, a deferred judgment and sentence would enter. 4 Pursuant to this agreement the petitioner tendered a plea of guilty and the court accepted it.

The petitioner appeared in the respondent court with his court appointed attorney for a preliminary hearing on the felony charges on August 12, 1980. The court found probable cause and set the case for arraignment and trial. The petitioner then filed a motion to dismiss the felony charges on the ground that they were based on the same criminal episode as the county court charge of third degree assault and accordingly were barred by section 18-1-408(2). The respondent court heard evidence on the motion and, apparently relying on the "same offense" principle of double jeopardy, denied the motion on the basis that there were "sufficient differences between the charges to justify the separate actions" and "(e)ach activity is sufficiently separate even though one occurred immediately after the other." 5 The petitioner thereafter commenced an original proceeding in this court.

We conclude that while the federal and state constitutional guarantees against double jeopardy do not justify the dismissal of the pending felony charges, the compulsory joinder requirements of section 18-1-408(2) prohibit the prosecution of the petitioner for these offenses and require dismissal of the action.

II.

The United States and Colorado Constitutions prohibit placing an accused twice in jeopardy for the same offense. U.S.Const. Amend. V; Colo. Const. Art. II, Sec. 18. The circumstances under which an accused is considered to have been twice placed in jeopardy are codified in sections 18-1-301 and 18-1-302, C.R.S.1973 (1978 Repl. Vol. 8). Jeopardy attaches in a jury trial when the jury is sworn, Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), or in a bench trial when the first witness is sworn, Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), or when a plea of guilty has been accepted by the court, Markiewicz v. Black, 138 Colo. 128, 330 P.2d 539 (1958); section 18-1-301(1)(c), C.R.S.1973 (1978 Repl. Vol. 8).

Section 18-1-301 codifies the "same offense" principle of double jeopardy by prohibiting a subsequent prosecution based on a violation of the same provision of law and upon the same facts as the former prosecution. The pending prosecution for first degree criminal trespass and conspiracy to commit that crime is based on different provisions of law than those underlying the misdemeanor prosecution for third degree assault, and proof of the trespass and conspiracy charges requires evidence different from that essential to establish the crime of third degree assault. See Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); People v. Mendoza, 190 Colo. 519, 549 P.2d 766 (1976); People v. Salas, 189 Colo. 111, 538 P.2d 437 (1975); People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974); People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973).

Section 18-1-302(1)(a)(II) formalizes the collateral estoppel aspects of double jeopardy by preventing a second prosecution for the same conduct based on a provision of law different from the former prosecution or based on different facts, unless the offense in the subsequent prosecution requires proof of a fact not required by the former prosecution and the law defining each offense is intended to prevent a substantially different harm or evil. 6 See, e. g., People v. Horvat, 186 Colo. 202, 527 P.2d 47 (1974). This statutory prohibition does not preclude the pending prosecution. The crimes of first degree criminal trespass and conspiracy to commit first degree criminal trespass require proof of facts different from those required for third degree assault. Also, the felonies of first degree criminal trespass and conspiracy to commit that offense are directed towards the security of one's dwelling while the misdemeanor of third degree assault seeks to protect bodily integrity. Thus, the only possible bar to the pending prosecution is the compulsory joinder provisions of section 18-1-408(2).

III.

While criminal conduct resulting in more than one offense may subject the offender to prosecution for each offense, section 18-1-408(1), C.R.S.1973 (1978 Repl. Vol. 8), the compulsory joinder provisions of section 18-1-408(2) extend further than the constitutional guarantee against double jeopardy and require that all charges be joined in a single prosecution under the following circumstances:

"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."

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. E. g., Ruth v. County Court, 198 Colo. 6, 595 P.2d 237 (1979), affirming 38 Colo.App. 459, 563 P.2d 956 (1977); People v. Freeman, 196 Colo. 238, 583 P.2d 921 (1978); People v. Tulipane, 192 Colo. 476, 560 P.2d 94 (1977); People v. District Court, 183 Colo. 101, 515 P.2d 101 (1973); Model Penal Code, § 108(2) (Tent. Draft No. 5, 1956); II ABA Standards for Criminal Justice, Joinder and Severance, Standard 13-2.3(c), commentary at 13.27-28 (2d ed. 1980). 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 pro...

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