People v. Rogers, 86SA156

Decision Date14 September 1987
Docket NumberNo. 86SA156,86SA156
Citation742 P.2d 912
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. David Lynn ROGERS and the District Court within and for the Twenty-Second Judicial District of the State of Colorado and the Honorable Robert Wilson, Judge thereof, Defendants-Appellees.
CourtColorado Supreme Court

Dean J. Johnson, Dist. Atty., Karen S. Winchester, Deputy Dist. Atty., Cortez, for plaintiff-appellant.

David F. Vela, Public Defender, Douglas D. Barnes, Deputy Public Defender, Denver, for defendants-appellees.

ERICKSON, Justice.

This is an appeal from a district court order dismissing felony charges against the defendant, David Rogers, for possession, cultivation, and conspiracy to cultivate marijuana in violation of sections 18-18-106(4)(b), 18-18-106(8)(a)(I), 18-2-201, 8B C.R.S. (1986). During a search of the defendant's residence pursuant to a search warrant, the police found marijuana, marijuana plants, tools for its cultivation and consumption, and three talons of a protected bird of prey. The defendant was charged by information in district court with the felony drug charges, and by complaint in county court with possession of raptor talons, a misdemeanor in violation of section 33-6-109, 14 C.R.S. (1984). Following the defendant's entry of a guilty plea to the misdemeanor charge, the district court ruled that the Colorado compulsory criminal joinder statute, section 18-1-408(2), 8B C.R.S. (1986), required the prosecution to join the felony drug charges with the misdemeanor complaint, and that the defendant's guilty plea to the misdemeanor charge foreclosed subsequent prosecution on the felony information. We reverse and remand with directions.


On September 5, 1985, deputies of the Montezuma County Sheriff's office searched the defendant's residence pursuant to a valid search warrant. During the search, the police discovered a quantity of marijuana in the defendant's home, marijuana plants growing between corn rows in his garden, and implements used for the cultivation, production, and consumption of marijuana. The police also found three large bird claws, which were later identified as raptor 1 talons. One of the talons was found in the defendant's living room, and had an alligator clip containing a marijuana cigarette attached to the upper part of the talon. The other two claws were discovered in a dresser drawer in the master bedroom of the defendant's home.

Because the deputies were not sure whether possession of the talons was a crime, and if so, what steps then should be taken, they contacted the Montezuma County District Attorney's office and advised the district attorney that they inadvertently had discovered three large bird claws in the defendant's home. The district attorney told the police to contact the Colorado Division of Wildlife (Division) and request the Division to send one of its officers to the defendant's home to inspect the claws. The police called the Division and related their discovery to Michael Reid, a district wildlife manager. Reid went to the defendant's home, examined the claws, and determined that they were raptor talons, possession of which is a misdemeanor punishable by a fine. See § 33-6-109, 14 C.R.S. (1984). The sheriff's deputies gave Reid the two talons found in the bedroom and retained the talon with the alligator clip and marijuana cigarette attached.

On September 16, 1985, a complaint was filed in Montezuma County Court charging the defendant with possession of eight or more ounces of marijuana, a class-five felony in violation of section 18-18-106(4)(b), 8B C.R.S. (1986), cultivation of marijuana, a class-four felony in violation of section 18-18-106(8)(a)(I), 8B C.R.S. (1986), and conspiracy to cultivate marijuana, a class-five felony in violation of section 18-2-201, 8B C.R.S. (1986). The defendant did not request a preliminary hearing, and was bound over to the Montezuma County District Court on October 8, 1985.

On October 10, 1985, Reid served the defendant with a "penalty assessment notice" charging him with unlawful possession of raptor talons in violation of section 33-6-109, 14 C.R.S. (1984). A "penalty assessment notice" is a specialized summons and complaint that may be issued by an officer of the Division of Wildlife for violations of the wildlife code, sections 33-1-101 to 33-6-130, 14 C.R.S. (1984 & 1986 Supp.), and must specify the alleged violation and fine assessed. See § 33-6-104(2), 14 C.R.S. (1986 Supp.). If the offender pays the fine to the Division within fifteen days, the payment constitutes an acknowledgment of guilt of the violation specified in the notice. Id. If the offender does not pay the fine within fifteen days, the issuing officer must docket the penalty assessment notice with the county court to require the offender to appear and answer the charges set forth in the notice. Id.

Several days before Reid issued the penalty assessment notice to the defendant, he met with Steve Strauss, a deputy district attorney for the Twenty-Second Judicial District, which is comprised of Montezuma and Delores Counties. See § 13-5-123, 6 C.R.S. (1973). Reid and Strauss discussed whether the district attorney's office should prosecute the wildlife and drug charges in a single action, and Strauss concluded that Reid should "handle it like [he] would normally." Reid thereafter issued the penalty assessment notice, which was made returnable in county court on December 3, 1985.

The defendant did not pay the fine as specified in the penalty assessment notice, and Reid docketed the case with the Montezuma County Court in accordance with section 33-6-104(2), 14 C.R.S. (1986 Supp.). On December 3, 1985, the defendant appeared in the county court and pleaded guilty to unlawful possession of raptor talons in violation of section 33-6-109, 14 C.R.S. (1984). The court accepted the plea and fined the defendant $548. Strauss was present in the county court at that time.

On December 4, 1985, the defendant entered a not-guilty plea in district court on the felony drug charges. On March 5, 1986, five days before trial, defense counsel moved to dismiss all the felony charges, alleging that the failure to join the wildlife and drug charges in one proceeding violated the criminal joinder statute, section 18-1-408(2), 8B C.R.S. (1986). The district court granted the motion and dismissed the information. This appeal followed. See § 16-12-102, 8A C.R.S. (1986); C.A.R. 4(b)(2).


The Colorado compulsory criminal joinder statute provides:

If the several offenses are known to the district attorney at the time of commencing the prosecution and were committed within his judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution.

§ 18-1-408(2), 8B C.R.S. (1986). 2

The prosecution contends that the defendant did not comply with Crim.P. 12(b)(3) and waived his compulsory joinder claim when he failed to raise the issue within twenty days of his arraignment on the felony charges. See Crim.P. 12(b)(2), (3). 3 We disagree.

Since the defendant's motion did not raise a defense based on a defect "in the institution of the prosecution or in the ... information," it is not barred under Crim.P. 12. It is well-established that "[a]n information is sufficient if it advises the defendant of the nature of the charges against him so that he can adequately defend himself and be protected from further prosecution for the same offense." People v. Hunter, 666 P.2d 570, 573 (Colo.1983); see also People v. Moore, 200 Colo. 481, 484, 615 P.2d 726, 728 (1980); Digiallonardo v. People, 175 Colo. 560, 565, 488 P.2d 1109, 1112 (1971). The defendant is correct in his assertion that the compulsory joinder defense was not available when the felony drug prosecution was instituted, since the wildlife charge had not been filed. The motion was therefore not based on a defect in the institution of the prosecution. Accordingly, Crim.P. 12 did not prevent the defendant from moving for dismissal more than twenty days after his arraignment.

We recently held that when a defendant asserts his rights under the compulsory joinder statute "prior to the beginning of the second trial," he has not waived his rights. See People v. Bossert, 722 P.2d 998, 1011-12 (Colo.1986). 4 In Bossert, we explained that the goals of the compulsory joinder statute are to protect the defendant from an oppressive second trial and to preserve judicial and legal resources. We concluded that neither of these purposes would be served by allowing defendant to raise the issue of compulsory joinder after his second trial. Where, as here, the defendant raises the issue before the second trial begins, the policies underlying the compulsory joinder rule still apply and the defendant does not waive the defense.


The purposes of compulsory joinder in criminal cases are "to protect the accused against the oppressive effect of sequential prosecutions based on conduct occurring during the same criminal episode and to conserve judicial and legal resources that otherwise would be wasted in duplicative proceedings." Corr v. District Court, 661 P.2d 668, 671 (Colo.1983) (quoting Jeffrey v. District Court, 626 P.2d 631, 637 (Colo.1981)); see also Ruth v. County Court, 198 Colo. 6, 595 P.2d 237 (1979); People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974). 5 In Jeffrey v. District Court, we identified five elements that must be proven before a subsequent prosecution of criminal charges against the defendant is barred: (1) the defendant is charged with several offenses in the same judicial district; (2) the defendant is prosecuted in one criminal action on one or more but not all of...

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