People v. Dillon
| Decision Date | 20 December 1982 |
| Docket Number | No. 81SC132,81SC132 |
| Citation | 655 P.2d 841 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Ricky DILLON, Respondent. |
| Court | Colorado Supreme Court |
J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., John Daniel Dailey, Asst. Atty. Gen., Denver, for petitioner.
J. Gregory Walta, Colorado State Public Defender, Denver, Harvey M. Palefsky, Deputy State Public Defender, Grand Junction, for respondent.
On August 11, 1978, the defendant, Ricky Dillon, was convicted of felony menacing. The court of appeals reversed the conviction because of the failure of the trial court to instruct the jury on the theory of self-defense. People v. Dillon, 631 P.2d 1153 (Colo.App.1981). We granted certiorari and now reverse the judgment of the court of appeals.
At approximately 10:30 p.m. on December 22, 1975, Margaret Driscoll drove into a gas station in order to purchase a package of cigarettes. At the same time, the defendant pulled into the station from the opposite direction. Driscoll testified that as she walked into the office the defendant told her to move her car, calling her a "white honky bitch." Driscoll refused and went in to buy the cigarettes.
The defendant followed Driscoll into the office and twice tapped her on the shoulder, again telling her to move her car. Driscoll completed her purchase and agreed to move the car. She then called the defendant "a nigger" because she "was angry." In response, the defendant struck her in the face two times.
Driscoll then went to her car, got a pipe, and began chasing the defendant. Although the sequence of events is not clear, it appears that a friend of Driscoll, William Decker, appeared and hit the defendant. The defendant then chased Decker.
Upon returning from the chase, the defendant asked Gregory Price, a passenger in his vehicle, for his "piece," at which time he was given a handgun. The defendant confronted Driscoll with the gun and both agreed to cease further fighting. However, when Driscoll turned to walk back to her car, the defendant struck her on the head with the handgun.
Driscoll got into her car and sat behind the wheel dazed. The defendant continued to point the weapon at her, telling her to move. At this point, a friend of Driscoll who was a passenger in her vehicle, convinced Driscoll to leave the premises.
As a result of the altercation, the defendant was charged with felony menacing, 1 assault in the second degree, 2 and a crime of violence. 3
Defendant was found guilty of felony menacing. The jury was unable to reach a verdict on the second-degree assault charge, and the court granted defense counsel's motion for mistrial on that count. Subsequently, the district attorney requested that the court enter a nolle prosequi order on the second-degree assault and crime of violence charges. The court granted the request and sentenced the defendant on the felony menacing charge to an indeterminate term of imprisonment not to exceed five years. This sentence was to run consecutively to a life-imprisonment sentence he had received in another case.
The jury returned the guilty verdict on August 11, 1978. No motion for a new trial was filed within the time frame established by Crim.P. 33(b). The court entered judgment and sentenced the defendant on September 8, 1978. Further, the court appointed a public defender for the purpose of appeal and allowed defendant's court-appointed trial counsel to withdraw. A timely notice of appeal was filed on October 6, 1978. See C.A.R. 4(b). The notice stated that the appeal would be based upon grounds set forth in defendant's motion for new trial.
Subsequently, the public defender, in prosecuting the appeal, realized that no new trial motion had been filed. On January 12, 1979, leave was requested to file a motion for new trial and a motion for judgment notwithstanding the verdict. The trial court denied the motions. On January 25, 1979, a notice of appeal was filed based upon the denial of leave to file the motion for new trial. This appeal was consolidated with the appeal challenging the defendant's conviction.
On appeal, the court of appeals reversed. People v. Dillon, supra. It ruled that "the trial court abused its discretion when it denied defendant's motion to file untimely motions and thereby perfect his appeal." Id. at 1154. Further, it ruled that the trial court erred in refusing to instruct the jury on self-defense.
The People challenge the court of appeals' decision on two grounds. They argue that the trial court properly denied defendant's motion for leave to file motions out of time and properly refused to instruct the jury on self-defense.
The defendant argued before the court of appeals that the trial court erred in refusing to declare a mistrial after two jurors may have seen him being taken down the hall of the courthouse in handcuffs. The court of appeals did not address this argument because it reversed the conviction on other grounds. Given our disposition of this case, however, we will address defendant's contention.
The People first argue that the trial court correctly denied the defendant's request to file motions out of time. We agree.
Crim.P. 33(b) provides in part "A motion for a new trial other than on the ground of newly discovered evidence shall be filed within fifteen days after verdict or finding of guilt or within such additional time as the court may fix during the fifteen-day period."
The language of the rule clearly specifies that the trial court may only extend the time for filing "during the fifteen-day period." In the present case the motion to allow the filing out of time was not presented until more than five months following the jury verdict and more than four months after the entry of judgment and sentencing in the case.
Defendant argues that relief from a failure to timely file any motion or to ask for an extension within the time prescribed for filing a motion may be afforded pursuant to Crim.P. 45(b). He further contends that the trial court erred in neglecting to apply the standards set out in Rule 45. Rule 45(b) provides:
"When an act is required or allowed to be performed at or within a specified time, the court for cause shown may at any time in its discretion:
....
(2) Upon motion, permit the act to be done after expiration of the specified period if the failure to act on time was the result of excusable neglect."
In Colorado the filing requirements set forth in Rule 33 are thus tempered by Rule 45. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). The trial court may allow the filing of a motion for a new trial outside of the time limits provided in Crim.P. 33(b). Nevertheless, the burden of showing excusable neglect is upon the defendant; further, the granting of the relief is within the sound discretion of the trial court. People v. Moore, supra.
There is always, of course, the requirement that the court have jurisdiction to act. It is axiomatic that any action taken by a court when it lacked jurisdiction is a nullity. McLeod v. Provident Mutual Life Insurance Co., 186 Colo. 234, 526 P.2d 1318 (1974). We are thus faced with the question of whether the trial court was divested of jurisdiction once the notice of appeal had been filed, leaving the trial court powerless to grant the motion for new trial. We believe that the trial court had no power to grant the motion for a new trial. See William F. Larrick, Inc. v. Burt Chevrolet, Inc., 147 Colo. 133, 362 P.2d 1030 (1961); Brooke v. People, 139 Colo. 388, 339 P.2d 993 (1959). See also People v. Jones, 631 P.2d 1132 (Colo.1981); Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972).
In Brooke v. People, supra, we held that where an appeal was pending before us, "jurisdiction of the case was vested entirely in this court, and the trial court had been divested of all jurisdiction in the cause other than to prepare and certify the record to this court in accordance with the applicable statute." 139 Colo. at 394, 339 P.2d at 996. We believe this reasoning equally applicable to the case at hand. The efficient administration of justice would not be served by a rule that permitted the trial court to reconsider its earlier rulings at the same time that an appeal is pending in an appellate court. Unless otherwise specifically authorized by statute or rule, once an appeal has been perfected, the trial court has no jurisdiction to issue further orders in the case relative to the order or judgment appealed from. 4 Consequently, should it be necessary for the trial court to act, other than in aid of the appeal or pursuant to specific statutory authorization, the proper course would be for a party to obtain a limited remand from the appellate court. See People v. District Court, 638 P.2d 65 (Colo.1981).
In light of the foregoing, we do not believe the trial court abused its discretion in failing to grant a motion for new trial, because in our view, it had no discretion to exercise. As a result, our review of defendant's contentions on appeal is under the "plain error" standard. Crim.P. 33(a), 52(b).
We must now consider whether the trial court's refusal to give the defendant's requested self-defense instruction was plain error. That is, we must decide whether it was a grave error that seriously affected the substantial rights of the accused. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972). In order for us to find plain error, there must be a reasonable possibility that the alleged erroneous instructions contributed to the defendant's conviction. People v. Aragon, 186 Colo. 91, 525 P.2d 1134 (1974). The existence of this possibility must be determined by an examination of the particular facts of the case. People v. Mills, 192 Colo. 260, 557 P.2d 1192 (1976).
The general rule in Colorado is that an instruction embodying the defendant's theory of the case must be given if there is any...
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People v. Harlan, No. 95SA298.
...exposure to Harlan in handcuffs was inadvertent; thus, it was not necessary to poll the jury or to grant a mistrial, see People v. Dillon, 655 P.2d 841, 846 (Colo.1982); McLean v. People, 172 Colo. 338, 347, 473 P.2d 715, 719-20 20. Whether the trial court erred in admitting a lay witness's......
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People v. Nunez, 91SC576
...must be given if there is any evidence in the record to support it." People v. Fuller, 781 P.2d 647, 651 (Colo.1989); People v. Dillon, 655 P.2d 841, 845 (Colo.1982). "[I]t is ... long recognized that it is not error for a trial court to refuse to give a defense theory instruction when the ......
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People v. Romero
...the court to submit on its own motion a jury instruction on this defense cannot be considered reversible error. See, e.g., People v. Dillon, 655 P.2d 841 (Colo.1983); Kurtz v. People, 177 Colo. 306, 494 P.2d 97 The defendant's last contention concerning jury instructions is that the trial c......
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People v. Marquez
...embodying the defendant's theory of the case must be given if there is any evidence in the record to support it. People v. Dillon, 655 P.2d 841, 845 (Colo.1983); People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979); People v. Truesdale, 190 Colo. 286, 546 P.2d 494 (1976); Payne v. People, ......
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ARTICLE 3
...1981); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. District Court, 652 P.2d 582 (Colo. 1982); People v. Dillon, 655 P.2d 841 (Colo. 1982); People v. Hamilton, 662 P.2d 177 (Colo. 1983); People v. Reedy, 705 P.2d 1032 (Colo. App. 1985).II. ELEMENTS OF OFFENSE. Essent......
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THE COLORADO APPELLATE RULES
...statutory authorization, the proper course would be for a party to obtain a limited remand from the appellate court. People v. Dillon, 655 P.2d 841 (Colo. 1982). Sentence imposed after revocation of probation is final judgment. Where the trial court has initially imposed sentence on a defen......
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Rule 4 APPEAL AS OF RIGHT — WHEN TAKEN.
...statutory authorization, the proper course would be for a party to obtain a limited remand from the appellate court. People v. Dillon, 655 P.2d 841 (Colo. 1982). Sentence imposed after revocation of probation is final judgment. Where the trial court has initially imposed sentence on a defen......
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RULE 60
...to trial courts over issues material to an appeal, that specific authorization trumps general jurisdictional principles. People v. Dillon, 655 P.2d 841 (Colo. 1982); In re W.C., 2020 CO 2, 456 P.3d 1261. This rule prescribes the conditions upon which the court may relieve a party from a fin......