People v. Paulsen, 28338

Citation601 P.2d 634,198 Colo. 458
Decision Date22 October 1979
Docket NumberNo. 28338,28338
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Gary Wayne PAULSEN, Defendant-Appellee.
CourtSupreme Court of Colorado

Nolan L. Brown, Dist. Atty., John R. Barksdale, Deputy Dist. Atty., Golden, for plaintiff-appellant.

C. J. Berardini, Denver, for defendant-appellee.

ROVIRA, Justice.

This is an appeal by the People from a judgment of acquittal entered by the trial court at the close of the People's case. The defendant was charged in an information with the crime of "possession with intent to dispense a dangerous drug . . . in violation of 12-22-404, C.R.S. 1973." The issues raised by this appeal are: (1) whether the trial court erred as a matter of law in granting the defendant's motion for judgment of acquittal on the basis that section 12-22-404, C.R.S. 1973 (1978 Repl.Vol. 5), did not proscribe the crime charged; and (2) whether jeopardy attached. We disapprove of the trial court's granting of the motion for judgment of acquittal, but rule that the defendant has been in jeopardy.

I.

The trial court based its judgment of acquittal on its determination that the statute cited in the information, section 12-22-404, does not define the crime of possession of a dangerous drug with intent to dispense. The People argue that the crime is validly defined in section 12-22-412(3), C.R.S. 1973 (1978 Repl.Vol. 5). We agree.

It is true that section 12-22-404, standing alone, does not define the crime in question. However, section 12-22-412(3), labeled "Violations penalties," at the time relevant to this appeal, provided as follows:

"Any person who has in his possession any dangerous drug with the intent to dispense said drug in violation of the provisions of section 12-22-404 . . . is guilty of a felony . . .."

People v. Shortt, 192 Colo. 183, 557 P.2d 388 (1976), is dispositive of this issue. In Shortt, we held that the trial court had acted improperly in dismissing an information which charged the crime of possession of cannabis with intent to sell. The inclusion of that crime within section 12-22-412(3), read in the context of the entire Colorado Dangerous Drug Act, was an adequate specification of the proscribed conduct, and the subheading, "Violations penalties," since not a part of the text of the statute, would not defeat the otherwise clear legislative proscription of conduct. This court also held in People v. Marion, 182 Colo. 435, 514 P.2d 327 (1973) that the incorrect statutory reference in the information was not material.

The issue raised in the instant case is identical to that in Shortt, supra. We hold that the trial court erred as a matter of law when it granted the defendant's motion for judgment of acquittal.

II.

The People argue that the double jeopardy clause of the state constitution (Colo.Const. Art. II, Sec. 18) does not preclude retrial of the defendant and that we should remand this case for a new trial, pursuant to our determination that the trial court erred as a matter of law in granting the motion for judgment of acquittal. We disagree.

The law is clear in Colorado that a defendant in a criminal case has been put in jeopardy within the meaning of the state double jeopardy clause: (1) when he has been indicted or informed against and has pled not guilty; (2) when the trial proceeds before a court with competent jurisdiction; (3) when a jury has been impaneled and sworn. Markiewicz v. Black, 138 Colo. 128, 330 P.2d 539 (1958); Menton v. Johns, 151 Colo. 276, 377 P.2d 104 (1962). Jeopardy attaches when the defendant is "present at a judicial proceeding aimed at reaching a Final determination of his guilt or innocence." People v. King, 181 Colo. 439, 445, 510 P.2d 333, 336 (1973). When jeopardy has thus attached and a judgment of acquittal has been granted at the defendant's request following the close of the prosecution's case, the defendant cannot be tried again on the same charge. Menton, supra; Krutka v. Spinuzzi, 153 Colo. 115, 384 P.2d 928 (1963). Retrial is precluded even when the trial court erred as a matter of law in granting the judgment of acquittal. Menton, supra; People v. Terry, 189 Colo. 177, 538 P.2d 466 (1975). The defendant in the instant case therefore cannot be...

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29 cases
  • People v. District Court
    • United States
    • Colorado Supreme Court
    • 29 Junio 1992
    ...Constitution than that provided by the federal constitution); People v. Sporleder, 666 P.2d 135 (Colo.1983) (same); People v. Paulsen, 198 Colo. 458, 601 P.2d 634 (1979) (recognizing more extensive double jeopardy protections under the Colorado Constitution than under the federal constituti......
  • People v. Serravo
    • United States
    • Colorado Supreme Court
    • 13 Enero 1992
    ...of the defendant even though the judgment was improper and was based on grounds unrelated to factual guilt. In People v. Paulsen, 198 Colo. 458, 601 P.2d 634 (1979), for example, we disapproved the trial court's erroneous entry of a judgment of acquittal on grounds unrelated to factual guil......
  • People v. Allee
    • United States
    • Colorado Supreme Court
    • 29 Junio 1987
    ...erred, and it may not order a new trial if an error was committed and the defendant was subsequently acquitted. People v. Paulsen, 198 Colo. 458, 460, 601 P.2d 634, 636 (1979); Krutka v. Spinuzzi, 153 Colo. 115, 384 P.2d 928 (1963). Furthermore, the People are limited to appealing questions......
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    ...customer's financial transactions for purposes of state constitutional protections against unreasonable searches); People v. Paulsen, 198 Colo. 458, 601 P.2d 634 (1979) (rejecting the double jeopardy analysis in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), in in......
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