People v. Scott, 79SA266
| Decision Date | 18 August 1980 |
| Docket Number | No. 79SA266,79SA266 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cornelius Lane SCOTT, Defendant-Appellant. |
| Court | Colorado Supreme Court |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Nathan B. Coats, Asst. Atty. Gen., Litigation Section, Denver, for plaintiff-appellee.
Bruce P. Fierst, Denver, for defendant-appellant.
Cornelius Lane Scott, appellant, appeals from his conviction of Driving After Judgment Prohibited, section 42-2-206, C.R.S. 1973. We affirm the judgment and remand for reconsideration of the sentence.
On April 7, 1977, Scott was charged with Driving While License Revoked, in violation of section 42-2-130, C.R.S. 1973 (now in 1979 Supp.). On May 27, 1977, he appeared, pro se, and tendered a plea of not guilty to the charge. A pretrial conference was held on July 14, 1977, and the case was then set for trial to the court on September 19, 1977.
On September 19, Scott appeared with counsel and tendered a plea of guilty to the charge. On that same date, it had been brought to the attention of the district attorney that Scott had been adjudicated an habitual traffic offender in December of 1976. Based on that information, and before the court ruled on Scott's plea of guilty, the People moved to dismiss the charge of Driving While License Revoked. The motion was granted. 1
On October 20, 1977, Scott was charged with the felony of Driving After Judgment Prohibited, section 42-2-206, as well as with the misdemeanor Driving While License Revoked. Because an incorrect address was listed for Scott, he was not notified of the new charge against him until January 1978. On April 4, 1978, he filed a motion to dismiss both charges, alleging violation of his right to a speedy trial and of his right to have all charges arising out of a single incident brought at the same time. The motion was denied, and the case was bound over to the district court.
On April 24, 1978, Scott filed a further motion to dismiss on the grounds that he had been denied a speedy trial and the court lacked jurisdiction to proceed against him. The court also denied that motion.
Trial to the court was held on October 5, 1978. Scott was convicted of Driving After Judgment Prohibited. The court dismissed the charge of Driving While License Revoked. At the sentencing hearing, the court denied Scott's motion to declare section 42-2-206 unconstitutional, and sentenced him to an indeterminate period not to exceed five years. The court also ruled that Scott was not eligible for a community correction program.
Scott first contends that the district court erred in denying his motion to dismiss pursuant to Crim.P. 48(b) and section 18-1-408(2), C.R.S. 1973 (1978 Repl.Vol. 8). We do not agree.
Both Crim.P. 48(b) and section 18-1-405(1), C.R.S. 1973 (1978 Repl.Vol. 8) require that a defendant be brought to trial "on the issues raised by the complaint" within six months after a plea of not guilty. In this case, Scott was brought to trial within six months of his plea of not guilty to the charge of Driving After Judgment Prohibited, but not within six months of his not guilty plea to the charge of Driving While License Revoked. The question before us is whether the six-month speedy trial period began to run after the not guilty plea to the Driving While License Revoked charge, or after the not guilty plea to the Driving After Judgment Prohibited charge.
In Amon v. People, Colo., 597 P.2d 569 (1979), the court set out a two-part test to be applied in determining whether the statutory right to speedy trial was violated where a complaint is amended after the defendant has entered a plea of not guilty to the original charge. The court held that it is crucial to the speedy trial issue to determine
Applying the Amon test to the facts of this case, we note first that, by charging Scott with the felony offense of Driving After Judgment Prohibited, the prosecution charged a new, different, and additional offense to the original charge of Driving While License Revoked. The latter charge is a misdemeanor, requiring proof that the accused was driving while his license was revoked. The offense of Driving After Judgment Prohibited required proof that the accused was driving while his license was revoked and that the accused had been determined to be an habitual offender, pursuant to section 42-2-202, C.R.S. 1973. The filing of the felony charge necessitated another arraignment of Scott.
The Amon test also mandates that the court examine the good faith of the prosecution to determine if, by not filing the felony charge at the time the original misdemeanor charge was filed, the prosecution was attempting to circumvent the speedy trial rule as set out in Crim.P. 48(b). Scott does not allege that the district attorney acted in bad faith, nor does the record indicate that the district attorney indiscriminately dismissed and refiled the charges in order to avoid the mandate of the speedy trial rule. See People v. Wilkinson, 37 Colo.App. 531, 555 P.2d 1167 (1976). 2 The record does indicate that, once the district attorney became aware that Scott had been determined to be an habitual offender, the district attorney took the necessary steps to charge him with Driving After Judgment Prohibited, as required by section 42-2-202(2). We hold that Scott was not denied a speedy trial.
We find no merit in Scott's argument that he was entitled to a dismissal under section 18-1-408(2) and Crim.P. 8(a). Section 18-1-408(2) provides, in pertinent part: 3
"If the several offenses are known to the district attorney at the time of commencing the prosecution * * * 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. * * * " (Emphasis added.)
Scott does not contend that the prosecution was aware that he was an habitual offender at the time that the initial charge was filed against him. The statute and Crim.P. 8(a) apply only where the prosecution is aware of other offenses at the time the original action is commenced.
Scott next argues that section 42-2-206 is unconstitutional as violative of equal protection of the law in that it has created an irrational and arbitrary classification in providing that habitual traffic offenders be subjected to mandatory sentencing, whereas other offenders whose conduct is of far greater culpability may be granted probation or be given suspended sentences. Scott concludes that this inequity of treatment of habitual traffic offenders is patently unfair and as such constitutes cruel and unusual punishment. We do not agree. It is only where "two statutes provide disparate penalties for similar criminal...
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