People v. Lemons, 89CA1849
| Decision Date | 01 August 1991 |
| Docket Number | No. 89CA1849,89CA1849 |
| Citation | 824 P.2d 56 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brent LEMONS, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Patrick J. Mulligan, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge REED.
Defendant, Brent Lemons, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony theft and the corresponding order of the trial court requiring him to pay, as a condition of parole, restitution to the police department. We affirm the judgment of conviction, but vacate the order of restitution and remand with directions.
Defendant was charged with one count of felony theft. Prior to trial, he filed a motion to suppress evidence of a prior felony conviction. The trial court reserved ruling on the motion until trial. Immediately before trial, the motion was denied, and the prosecutor was allowed to impeach defendant's credibility with evidence of a prior felony conviction.
The jury found defendant guilty, and he was sentenced to the Department of Corrections for a term of four years. The trial court also ordered defendant to pay, as a condition of parole, $1,205.42 restitution to the police department.
Defendant contends that the trial court erred in allowing the prosecutor to impeach his credibility with a prior felony conviction because the prosecutor failed to provide him with transcripts of the providency hearing in which he pled guilty. We disagree.
To warrant the suppression of a prior conviction, the accused must make a prima facie showing of a constitutional violation, and the mere showing of uncertainty as to whether a violation has occurred is insufficient. People v. Romero, 767 P.2d 782 (Colo.App.1988).
Here, defense counsel offered no evidence to show that defendant's prior felony conviction was unconstitutionally obtained. Instead, defense counsel argued that evidence of prior convictions should not be admitted because defendant was prevented from presenting a prima facie case. Defendant argued that the prosecutor's failure to produce the transcripts from a foreign state providency hearing required a suppression of the conviction that resulted from the hearing. The prosecutor, however, indicated that he had made every effort to obtain the transcripts, but he was unsuccessful.
When the transcripts were not produced, defendant admittedly had the option to request a continuance until the transcripts were made available. Defendant's failure to request a continuance discredits any claim of prejudice. See generally People v. Wieghard, 727 P.2d 383 (Colo.App.1986).
Thus, in the absence of any evidence from defendant to establish that his prior guilty plea was unconstitutionally obtained and in light of his failure to request a continuance, the trial court properly admitted evidence of his prior conviction.
Defendant also contends that the trial court erred in ordering him to pay restitution to the police department. We agree that the award was improperly designated as restitution.
Here, in addition to a four-year term of incarceration, defendant was ordered to pay restitution to the police department in an amount equal to the expenses incurred in his extradition from another state. The amount and nature of the expenses is not in dispute. Rather, the controversy is limited to whether the court had the authority to enter such an order as "restitution."
We agree with defendant's contention that if a defendant is sentenced to...
To continue reading
Request your trial
-
State v. Ryyth
...back to Arizona for prosecution was a prosecution cost); Skillman v. State, 696 So.2d 1341, 1342 (Fla.Dist.Ct.App.1997); People v. Lemons, 824 P.2d 56 (Colo.Ct.App.1991) (extradition cost to bring defendant to answer charges was a cost of prosecution and improperly designated as restitution......
-
People v. Gallegos
...evidence, if necessary. Defendant's counsel's failure to request a recess discredits any claim of prejudice. See People v. Lemons, 824 P.2d 56, 57 (Colo.App.1991); People v. Wieghard, 727 P.2d 383, 386 (Colo. VII. Right to Trial by Jury Last, defendant contends that the district court viola......
-
State v. Watson
...sheriff to Ohio, where defendant was arrested, and bring him back to Arizona for prosecution was a prosecution cost); People v. Lemons, 824 P.2d 56, 58 (Colo.App.1991) (holding extradition cost was recoverable from defendant as a cost of prosecution, but not as restitution); Maroney v. Stat......
-
State Of Iowa v. Watson
...sheriff to Ohio, where defendant was arrested, and bring him back to Arizona for prosecution was a prosecution cost); People v. Lemons, 824 P.2d 56, 58 (Colo. App. 1991) (holding extradition cost was recoverable from defendant as a cost of prosecution, but not as restitution); Maroney v. St......