People v. Lucero, 80SA490
| Decision Date | 29 November 1982 |
| Docket Number | No. 80SA490,80SA490 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John J. LUCERO, Defendant-Appellee. |
| Court | Colorado Supreme Court |
R. Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.
J. Gregory Walta, Colorado State Public Defender, Deborah S. Waldbaum, Deputy State Public Defender, Denver, for defendant-appellee.
The trial court on defendant Lucero's motion at the conclusion of the prosecution's presentation of evidence, entered a judgment of acquittal of the charge of escape. On appeal, the People contend that the trial court erred in granting the defendant's motion. We agree and therefore disapprove the judgment rather than reverse and remand for a new trial because any effort to again try this defendant on this charge would be contrary to the double jeopardy provisions of Article II, Section 18 of the Constitution of Colorado.
The defendant was convicted of robbery and sentenced to the Colorado State Penitentiary for an indeterminate period not to exceed four years. After several months at the penitentiary he was transferred to a work release facility of the penitentiary. Defendant was given a ten-hour pass to leave the facility, however, he failed to return in 10 hours but did return ten days later.
He was charged with the crime of escape under section 18-8-208, C.R.S.1973 (1978 Repl.Vol. 8) and a jury trial was scheduled. After the district attorney rested his case, defense counsel moved for a judgment of acquittal. As its basis for acquitting the defendant, the trial court held in effect that because defendant had been given a ten-hour pass, he was authorized to leave the facility and was therefore no longer in custody or confinement when he left. A fortiori, the trial court concluded that the defendant could not have "departed from lawful custody or confinement" which is one of the statutory elements of the crime of escape. See People v. Williams, 199 Colo. 515, 611 P.2d 973 (1980).
The trial court erred as a matter of law in its conclusion that defendant was no longer in custody after leaving the facility on a weekend pass. Section 17-27-108, C.R.S.1973 (1982 Supp. to 1978 Repl.Vol. 8) clearly applies to the situation involved here and specifically states that such an offender may be convicted of escape. It provides that:
"If an offender fails to remain within the extended limits of his confinement or to return within the time prescribed to an institution to which he...
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Wilson v. People
...and the failure to return to the facility is punishable as an escape under section 18-8-208, 8B C.R.S. (1986). People v. Lucero, 654 P.2d 835 (Colo.1982); § 17-27-108, 8A C.R.S. (1986). In my view, the court of appeals decision that Wilson had no right to an adversarial or evidentiary heari......
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...an insanity adjudication, People v. Giles, 662 P.2d 1073, 1074 (Colo.1983), and in a penitentiary work release facility, People v. Lucero, 654 P.2d 835, 836 (Colo.1982). We have not had occasion until now to address the circumstances under which flight from a police officer violates the esc......
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People v. Gallegos
...his statutory speedy trial rights. If the prosecution waited to appeal until after trial, the issue would be moot. See People v. Lucero, 654 P.2d 835, 836 (Colo.1982) (disapproving of but not reversing defendant's acquittal due to double jeopardy concerns); People v. Lewis, 791 P.2d 1152, 1......
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...A person sentenced to community corrections is considered to be "in custody" and subject to the authority of the court. People v. Lucero, 654 P.2d 835, 836 (Colo. 1982); People v. Brown, 695 P.2d 776, 777 (Colo.App.1984); see also § 17-27-106, C.R.S.2008 (a person who fails timely to return......