People v. Tulipane

• Decision Date: 22 February 1977
• Docket Number: No. 27233,27233
• Citation: 192 Colo. 476,560 P.2d 94
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Herbert TULIPANE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 94

560 P.2d 94

192 Colo. 476

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Herbert TULIPANE, Defendant-Appellee.

No. 27233.

Supreme Court of Colorado, En Banc.

Feb. 22, 1977.

Robert L. Russel, Dist. Atty., Jon C. Thomas, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Denver, Barney Iuppa, Jr., Deputy State Public Defender, Colorado Springs, for defendant-appellee.

LEE, Justice.

The district attorney appeals from an order of the district court, dismissing an eight-count information against defendant-appellee Herbert Tulipane. We reverse the judgment of dismissal.

The dismissal arose out of the following circumstances. On June 9, 1975, defendant was charged in the county court of El Paso County with criminal mischief misdemeanor against the property of Fountain Valley Lanes, committed on June 9, 1975, in violation of section 18--4--501, C.R.S.1973.

On June 12, 1975, a nine-count information was filed in the district court of El Paso County, charging the defendant with the following offenses: count 1, criminal mischief felony against the property of Peter Watson, d/b/a Fabrics Plus, committed on June 9, 1975, in violation of section 18--4--501, C.R.S.1973; count 2, second-degree burglary against the property of Bart and Gaby Childs, d/b/a Zugspitze German Delicatessen, committed on June 8 and 9, 1975, in violation of section 18--4--203, C.R.S.1973; count 3 theft misdemeanor of the property of Bart and Gaby Childs, d/b/a Zugspitze German Delicatessen, committed on June 8 and 9, 1975, in violation of section 18--4--401, C.R.S.1973; ¹ count 4, criminal mischief misdemeanor against the property of Vern C. Mann, d/b/a Security Exxon, committed on June 8 and 9, 1975, in violation of section 18--4--501, C.R.S.1973; count 5, second-degree burglary against the property of Kenneth Blackmore, d/b/a Quality Oil Company, committed on June 9, 1975, in violation of section 18--4--203, C.R.S.1973; count 6, theft misdemeanor of the property of Kenneth Blackmore, d/b/a Quality Oil Company, committed on June 9, 1975, in violation of section 18--4--401, C.R.S.1973; count 7, second-degree burglary against the property of Walt Gabardi, d/b/a Gabardi Texaco Station, committed on June 9, 1975, in violation of section 18--4--203, C.R.S.1973, count 8, theft misdemeanor of the property of Gabardi Texaco Station, committed on June 9, 1975, in violation of section 18--4--401, C.R.S.1973; count 9, criminal mischief misdemeanor against the property of Scott Danley, d/b/a Fountain Valley Lanes, committed on June 9, 1975, in violation of section 18--4--501, C.R.S.1973.

On September 25, 1975, defendant entered a plea of guilty in the county court to the criminal mischief misdemeanor. Thereafter, he filed his motion in the district court to dismiss count 9 of the information, which charged the same offense to which he had pleaded guilty in the county court. This motion to dismiss was granted.

The defendant the moved to dismiss all of the remaining eight counts of the information, contending that the plea of guilty entered in the county court on the criminal mischief misdemeanor charge acted as a bar to further prosecution under section 18--1--408(2), C.R.S.1973. This section provides:

'(2) 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.'

The defendant argued in the district court that the statute required the district attorney to bring all of the charges in a single prosecution, for the reason...