People v. Jones

• Decision Date: 12 December 1996
• Docket Number: No. 95CA1135,95CA1135
• Citation: 942 P.2d 1258
• Parties: 20 Colorado Journal 1835 The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Marjyna C. JONES, Defendant-Appellee and Cross-Appellant. . II
• Court: Colorado Court of Appeals

Page 1258

942 P.2d 1258

20 Colorado Journal 1835

The PEOPLE of the State of Colorado, Plaintiff-Appellant and Cross-Appellee, v. Marjyna C. JONES, Defendant-Appellee and Cross-Appellant.

No. 95CA1135.

Colorado Court of Appeals Div. II.

Dec. 12, 1996.

Rehearing Denied Jan. 16, 1997.

Certiorari Denied Sept. 8, 1997.

Office of the District Attorney, Robert R. Gallagher, Jr., District Attorney, James C. Sell, Chief Deputy District Attorney, Englewood, for Plaintiff-Appellant and Cross-Appellee.

Lloyd L. Boyer, P.C., Lloyd L. Boyer, Englewood, for Defendant-Appellee and Cross-Appellant.

Opinion by Judge CRISWELL.

Pursuant to § 16-12-102, C.R.S. (1996 Cum.Supp.), the People appeal from the district court's order granting the defendant a new trial under Crim. P. 33(c). Defendant cross-appeals. We dismiss defendant's cross-appeal and affirm the order directing a new trial.

Defendant, while incarcerated for other convictions, was charged with two counts of second degree assault in violation of § 18-3- 203(1)(c), C.R.S. (1986 Repl.Vol. 8B). The charges arose from incidents which occurred at the medical unit where defendant was receiving treatment for seizures. A sheriff's deputy and a nurse were injured as they attempted to prevent defendant from leaving the unit. The defendant asserted that the acts were the result of involuntary body movements while she was suffering or recovering from a seizure.

Defendant was convicted of one count of second degree assault under § 18-3-203(1)(c), as well as the lesser offense of third degree assault upon the deputy sheriff under § 18-3-204, C.R.S. (1986 Repl.Vol. 8B). She was acquitted of assaulting the nurse.

After her conviction, defendant moved either for a judgment of acquittal or for a new trial based on the then recent holding in People v. Stafford, 890 P.2d 244 (Colo.App.1994), in which a division of this court ruled that obstruction of a peace officer is a lesser included offense of second degree assault. Because no lesser included offense instruction had been given with respect to the alleged assault upon the deputy sheriff, the district court granted defendant a new trial under Crim. P. 33(c).

The People appeal from that ruling, and defendant has cross-appealed, arguing that the evidence was insufficient to support her conviction and that a new trial would violate principles of double jeopardy.

I.

As a threshold matter, we must first determine whether a defendant in a criminal case can prosecute an appeal from an order of the district court, entered at that defendant's request, directing that the previous conviction be set aside and that a new trial be granted. We conclude that she cannot.

The jurisdiction of this court rests upon the grant of authority from the General Assembly. See Colo. Const. art. VI, § 1; § 13-3-101, C.R.S. (1996 Cum Supp.). With certain exceptions not pertinent here, this court has been granted jurisdiction only "over appeals from final judgments of the district courts." Section 13-4-102(1), C.R.S. (1987 Repl.Vol. 6A) (emphasis supplied).

Significantly, however, an order granting a new trial is not generally considered to be a final judgment; it does not dispose of the case. Hence, as a general rule, an appeal will not lie from such an order, whether entered in a civil case, Chartier v. Winslow Crane Service Co., 142 Colo. 294, 350 P.2d 1044 (1960), or in criminal proceedings, People v. Cochran, 176 Colo. 364, 490 P.2d 684 (1971).

Here, by recent amendment, § 16-12-102(1), C.R.S. (1996 Cum.Supp.) now provides that "the prosecution" may appeal "any order of the trial court granting a new trial...." Prior to the adoption of that amendment, the People could not institute such an appeal. People v. Smith, 921 P.2d 80 (Colo.App.1996).

That statute, according to its plain terms, applies only to "the prosecution"; it does not purport to vest a defendant with the right to appeal from such an interlocutory order. The reason it is so limited is self-evident. Absent manifest necessity, a new trial may not be granted at the request of the prosecution; it is, therefore, at the request of the defense that such relief is afforded. See 4 C. Torcia, Wharton's Criminal Procedure § 517 at 338-339 (13th ed.1992). And, an order setting aside a prior conviction and ordering a new trial does not, itself, aggrieve a defendant who asks for such relief.

In any event, we conclude that, because an order directing that a new trial be conducted is not a final judgment under § 13-4-102 and there is no other statute authorizing such an appeal, we have no jurisdiction over a defendant's appeal from such an order, even if, as here, that defendant asserts that a new trial would violate his or her rights. Such issues must be presented to the trial court during the course of the new trial proceedings, by a petition to our supreme court under the Colorado Constitution art. VI, § 3, or in an appeal from a later final judgment of conviction. Hence, the cross-appeal must be dismissed.

II.

The People contend that the district court erred in granting defendant a new trial pursuant to Crim. P. 33(c). We disagree.

Crim. P. 33(c), like its federal counterpart, Fed.R.Crim.P. 33, authorizes a trial court to grant a defendant's request for a new trial "if required in the interest of justice." While it may be difficult to describe with particularity the precise contours of authority that this provision grants to a trial court, it is clear that it has the effect of vesting discretion in the court to grant a new trial in circumstances in which the entry of a judgment of acquittal or other relief would not be appropriate. See United States v. Simms, 508 F.Supp. 1188 (W.D.La.1980).

Here, defendant was charged with assaulting two persons while she was incarcerated. Although she was initially charged with two counts of assault in the second degree, the jury was also instructed upon the lesser non-included offense of third degree assault with respect to each victim....