People v. Chapman, C--966
| Decision Date | 03 January 1977 |
| Docket Number | No. C--966,C--966 |
| Citation | 557 P.2d 1211,192 Colo. 322 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Nancy Jeanne CHAPMAN, Respondent. |
| Court | Colorado Supreme Court |
Nolan L. Brown, Jefferson County Dist. Atty., Robert M. Kelly, Deputy Dist. Atty., Golden, for petitioner.
Robinson-Robinson, P.C., Michael D. Boster, Lakewood, for respondent.
The defendant drove off a mountain road at about fifty miles per hour. She and her passengers had all been drinking at a bar at the top of the mountain until shortly before the accident. She was charged with reckless driving in the Jefferson County Court and convicted by a jury of careless driving as a lesser included offense. The district court reversed. We granted certiorari and now reverse the district court judgment.
The defendant's attorney failed to comply with Crim.P. 37(e) by filing her brief in the district court within twenty days after the county court certified the record. Pursuant to an ex parte motion by the People, the district court dismissed the appeal.
Upon receiving notice of the dismissal, the defendant's counsel moved to vacate that order and reinstate the appeal. He asserted: (1) that neither he nor the defendant had received notice of the People's motion, and (2) that the brief would have been timely filed had he not mistakenly written the wrong filing deadline in his calendar. Expressing a concern for fundamental fairness and a preference for deciding cases on the merits rather than on legal technicalities, the district court reinstated the appeal.
The People here contend that, absent an extension of time granted before expiration of the twenty-day filing period or a showing of 'excusable neglect,' the district court had no authority to reinstate the appeal. We disagree. The rule states: 'In the discretion of the district court, the time for filing briefs and answers may be extended.' Crim.P. 37(e). The trial court's discretion is not restricted to extensions requested within the normal filing time. The timely filing of a brief is not jurisdictional under this rule.
Citing Farmers Insurance Group v. District Court, 181 Colo. 85, 507 P.2d 865 (1973), the People argue that there must be a showing of excusable neglect before the court may reinstate the appeal. They further argue that the defense attorney here was merely careless, and the criteria of excusable neglect enunciated in Farmers Insurance were not met.
Farmer Insurance, however, was a Civil case. It turned on interpretation of the provision of C.R.C.P. 6(b)(2) which expressly requires a showing of excusable neglect before the time for performing an act may be extended once the prescribed time has expired. No such excusable neglect prerequisite appears in Crim.P. 37(e). Obviously the court may consider excusable or inexcusable neglect among other factors in deciding whether to grant a motion to reinstate after late filing of a brief.
We hold that reinstatement of the appeal in the interest of justice was within the district court's discretion.
The People assert that the district court erred in holding that careless driving is not a lesser included offense when reckless driving is charged. We agree.
An offense is a lesser included offense if:
'(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
'(c) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.' Section 18--1--408(5), C.R.S. 1973.
In determining whether a particular crime is a lesser included offense, 'the statutes which set forth the constituent elements of each crime must be compared.' People v. Rivera, 186 Colo. 24, 26, 525 P.2d 431, 433 (1974). The 'greater offense includes a lesser offense when the establishment of the essential elements of the greater Necessarily establishes all of the elements required to prove the lesser.' Daniels v. People, 159 Colo. 190, 193, 411 P.2d 316, 317 (1966).
Thus the issue is whether the elements of Reckless driving include all the elements of Careless driving. Reckless driving is defined as driving a motor vehicle 'in such a manner as to indicate either a wanton or a willful Disregard for the safety of persons or property . . ..' Section 42--4--1203(1), C.R.S. 1973 (emphasis added). Careless driving is defined as driving a motor vehicle 'in a careless and imprudent manner, Without due...
To continue reading
Request your trial
-
People v. Leske
...mens rea element or degree of injury or risk of injury, the lesser offense is nonetheless included. See People v. Chapman, 192 Colo. 322, 325, 557 P.2d 1211, 1213 (1977) (careless driving is lesser included offense of reckless driving under 18-1-408(5)(c) because the offenses are the same e......
-
People v. Zweygardt
...a result will occur or that a circumstance exists, has necessarily acted without due regard for safety. See People v. Chapman, 192 Colo. 322, 325, 557 P.2d 1211, 1213–14 (1977) (careless driving is a lesser included offense of reckless driving because “the greater degree of negligence inclu......
-
People v. Moore
...determination of the effect of time limitations are not necessarily the same in criminal cases as in civil cases. People v. Chapman, Colo., 557 P.2d 1211 (1977). While in both situations there is a strong judicial preference for deciding cases on the merits rather than on the basis of time ......
-
People v. Ager, 94CA0309
...elements of the greater offense necessarily establishes all of the elements required to prove the lesser offense. People v. Chapman, 192 Colo. 322, 557 P.2d 1211 (1977). Defendant would extend the rationale for the merger rule to encompass the ulterior crime of assault within the predicate ......
-
Vagueness in Colorado Driving Laws
...adopt the Model Traffic Code for Colorado Municipalities, § 5-1 (1973). 33. C.R.S. 1973, § 42-4-1203. 34. People v. Chapman,___Colo.___, 557 P.2d 1211 (1977). 35. C.R.S. 1973, § 18-1-501(8). 36. C.R.S. 1973, § 18-3-104(a). (c) 1978 The Colorado Lawyer and Colorado Bar All Rights Reserved. A......
-
Criminal Appeals from County Court
...617 (Colo.App. 2009). 101. Id.See also Filing Instructions, supra note 22. 102. Crim.P. 37(e). 103. Id. 104. Id. 105. People v. Chapman, 557 P.2d 1211, 1212-13 (Colo. 1977). 106. Crim.P. 37(e) ("A written brief . . . shall be filed in the district court by the appellant.") (emphasis added).......