People v. Warner, Nos. 96SA70

• Docket Nº: 96SA89
• Citation: 930 P.2d 564
• Case Date: December 16, 1996
• Court: Supreme Court of Colorado

Page 564

930 P.2d 564 20 Colorado Journal 1872 The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
James Francis WARNER, Defendant-Appellee.
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
James Francis WARNER, Defendant-Appellant. Nos. 96SA70, 96SA89. Supreme Court of Colorado,
En Banc. Dec. 16, 1996.

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David J. Thomas, District Attorney, First Judicial District, Donna Skinner Reed, Chief Deputy District Attorney, Golden, for the People.

Stephen H. Duitch, Colorado Springs, for James Francis Warner.

Justice KIRSHBAUM delivered the opinion of the Court.

These consolidated cases require this court to review the propriety of two rulings entered by the trial court: whether the trial court properly dismissed three felony counts filed against James Francis Warner, appellant in Case No. 96SA89 and appellee in Case No. 96SA70, and whether the trial court properly denied Warner's motion to dismiss two remaining misdemeanor counts in this case. In denying Warner's motion, the trial court concluded the provisions of section 18-1-405, 8B C.R.S. (1986), governing Warner's right to a speedy trial were tolled pending resolution of an appeal filed by the People, appellant in Case No. 96SA70 and appellee in Case No. 96SA89, seeking reversal of the trial court's order dismissing the felony counts. We affirm the trial court's rulings.

I

The record establishes the following facts. In December 1994, Warner and two accomplices allegedly visited the Eureka Casino in Blackhawk and used a device referred to as a "light wand" to illegally obtain tokens from a slot machine. Warner was arrested and posted bond. Based upon this act, the People filed an information against Warner charging him with three felony offenses defined by the criminal code: third-degree burglary, ¹ possession of burglary tools, ² and conspiracy to commit third-degree burglary. ³ The information also alleges two misdemeanor offenses against Warner: theft ⁴ and fraudulent acts while participating in gaming activities. ⁵ The fraudulent act misdemeanor offense constitutes a violation of the Limited Gaming Act of 1991. §§ 12-47.1-101 to -1401, 5B C.R.S. (1991) (the Act). ⁶ On April 28, 1995, Warner entered pleas of not guilty to all of the charges. Pursuant to section 18-1-405(1), 8B C.R.S. (1986), Warner was entitled to a trial within six months of that date. A trial was scheduled for September 5, 1995.

On July 21, 1995, Warner filed a motion to dismiss the three felony counts, arguing that he could not be prosecuted for these general offenses because the General Assembly had in effect precluded prosecution for such general offenses by including more specific offenses relating to his alleged conduct in the Act. Citing People v. Bagby, 734 P.2d 1059 (Colo.1987), the trial court concluded that in adopting the Act and its specific provisions prohibiting conduct associated with gaming, the General Assembly intended to preclude prosecution for such conduct under the more general criminal statutes. Accordingly, the trial court granted Warner's motion to dismiss the three felony counts on August 18, 1995.

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On September 1, 1995, the People appealed the trial court's August 18, 1995, order to the court of appeals, pursuant to section 16-12-102, 8A C.R.S. (1996 Supp.). ⁷ On September 5, 1995, the trial court vacated the trial set for that date, holding that all trial proceedings must be stayed pending resolution of the People's appeal. Warner objected, asserting that any delay beyond October 28, 1995, would violate his statutory right to a speedy trial.

On November 3, 1995, Warner filed a motion to dismiss the remaining misdemeanor counts, asserting a violation of his statutory right to a speedy trial. On January 2, 1996, the trial court entered an order denying Warner's motion. The trial court concluded that the People's appeal constituted an interlocutory appeal; that pursuant to section 18-1-405(6)(b), 8B C.R.S. (1986), the speedy trial statute was tolled pending resolution of the People's interlocutory appeal; and that the trial court lacked jurisdiction to grant Warner's motion absent an order by the court of appeals remanding the case to the trial court for that purpose. In early February 1996, Warner filed a notice of appeal with the court of appeals seeking reversal of the trial court's refusal to dismiss the misdemeanor counts. ⁸

On February 20, 1996, pursuant to section 13-4-110(1)(a), 6A C.R.S. (1987), the court of appeals referred the People's pending appeal, Case No. 95CA1520, to this court for a determination of jurisdiction. We accepted jurisdiction of the People's appeal on February 26. ⁹

On March 5, 1996, Warner filed a petition for writ of mandamus in this court, pursuant to C.A.R. 21, requesting this court to order the trial court to dismiss the misdemeanor counts, or, alternatively, to order the court of appeals to certify Warner's pending appeal to this court "to be combined and consolidated" with the People's pending appeal. ¹⁰ On March 7, 1996, we entered an order transferring Warner's appeal to this court and consolidating Warner's appeal with the People's appeal. As a result, Warner's petition requesting this court to exercise its original jurisdiction is moot.

II

The People assert that the trial court erred in dismissing the three felony counts filed against Warner. We disagree.

For the alleged act of using a light wand to illegally obtain tokens from a slot machine, the People charged Warner with the felony offenses of third-degree burglary, possession of burglary tools, and conspiracy to commit third-degree burglary. Third-degree burglary is defined, in relevant part, as follows:

A person commits third degree burglary if with intent to commit a crime he enters or breaks into any vault, safe, cash register, coin vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, or other apparatus or equipment whether or not coin operated.

§ 18-4-204(1), 8B C.R.S. (1986). Possession of burglary tools is defined as follows:

A person commits possession of burglary tools if he possesses any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into the premises or theft by a physical taking, and intends to use the thing possessed, or knows that some person intends to use the thing possessed, in the commission of such an offense.

§ 18-4-205(1), 8B C.R.S. (1986). The conspiracy charge was based on the alleged burglary offense.

The Act also defines a number of offenses specifically related to limited stakes gambling activities. Those sections of the Act establishing such offenses are codified verbatim in article 20 of the Criminal Code. §§ 18-20-101 to -115, 8B C.R.S. (1996 Supp.) (Offenses Related to Limited Gaming). One of these offenses, entitled "Use of counterfeit or

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unapproved chips or tokens or unlawful coins or devices--possession of certain unlawful devices, equipment, products, or materials," provides in pertinent part as follows:

It is unlawful for any person to use or possess while on the premises [of a licensed gaming establishment] any cheating or thieving device, including but not limited to, tools, drills, wires, coins, or tokens attached to strings or wires or electronic or magnetic devices, to facilitate the alignment of any winning combination or to facilitate removing from any slot machine any money or contents thereof, unless the person is a duly authorized gaming employee acting in furtherance of his or her employment.

§ 12-47.1-825(7), 5B C.R.S. (1991); § 18-20-109(7), 8B C.R.S. (1996 Supp.). As applied to acts allegedly committed by Warner, this offense is classified as a misdemeanor offense. § 12-47.1-825(8), 5B C.R.S. (1991); § 18-20-109(8), 8B C.R.S. (1996 Supp.).

This offense describes Warner's alleged conduct more precisely than the much broader language of the statute prohibiting burglary with which Warner was charged. In People v. Bagby, 734 P.2d 1059 (Colo.1987), the defendant was charged with the general felony offense of offering a false instrument for recording for having falsely filled out a liquor license application. § 18-5-114, 8B C.R.S. (1985). The same conduct was more specifically proscribed by various sections and implementing regulations of the Colorado Liquor Code. § 12-47-129(4)(a), 5 C.R.S. (1985); Revenue Regulation 47-107.1, 1 C.C.R. 203-2. The Liquor Code also provided that such violations were to be punished as misdemeanors. § 12-47-130, 5 C.R.S. (1985). We noted that while ordinarily section 18-1-408(7), 8B C.R.S. (1986), grants a prosecutor discretion to charge any or all applicable offenses, prosecution under a general criminal statute may nonetheless be barred where "a legislative intent is shown to limit prosecution to [a] special statute." Bagby, 734 P.2d at 1061 (citations omitted).

We concluded that in adopting the Liquor Code the General Assembly intended the specific provisions of that statute to supplant the more general provisions of the Criminal Code with respect to conduct arguably violating both statutory schemes. Bagby, 734 P.2d at 1062. In support of that conclusion we noted that in adopting the Liquor Code the General Assembly invoked the full police power of the state; that the Liquor Code created a comprehensive regulatory program; and that the Liquor Code carefully defined different types of offenses in considerable detail, often with particularized references to specific provisions of the Criminal Code. Id. Given these features of the Liquor Code, we concluded that the General Assembly clearly intended the filing of false statements on liquor license applications to be prosecuted under the specific provisions of the Liquor Code relating to that precise offense, rather than under the general criminal statute prohibiting the recording of a false instrument. Id.

The...