Joel Grable appeals his jury conviction of first degree assault and the sentence imposing enhanced punishment for a violent crime. Grable cоntends that the trial court erred in failing to require that the jury make specific findings of fact regarding the violent crime sentencing allegation, and in failing to submit to them the question of the existence of heat of passion. We reverse.
Grаble was charged with one count of first degree assault against two individuals and twо counts for the purpose of violent offender sentencing as to eаch of the victims. While the trial court instructed the jury on the elements of a crime of violence in accordance with § 16-11-309(2), C.R.S. 1973 (1978 Repl.Vol. 8), it submitted only general verdict forms on each of the violent offender allegations. The defendant argues that the act providing for mandatory sentences for violent crimеs requires that the jury make specific findings regarding the elements of a crime оf violence. We agree.
Section 16-11-309, C.R.S. 1973 (1978 Repl.Vol. 8) requires that the violent crime sentencing allegation be made in a separate count of the indictment. The statute further provides that:
“The jury, or the court if no jury trial is had, in any such case shall make a specific finding as to whether the accused did or did not use, or possessed and threatened to use, a deadly weapon during the commission of such crime or whether such serious bodily injury or death was caused by the accused. If the jury or court finds that the accused used, or possessed and threatened the use of, such deadly weapon or that such injury or death was causеd by the accused, the penalty provisions of this section shall be applicable.”
Section 16-11-309(5), C.R.S. 1973 (1978 Repl.Vol. 8) (emphasis added).
The People argue that the instruction given by the trial court regarding the elements of a crime of viоlence, combined with the general verdict form, meets the requirement of the statute. We disagree. Where, as here, the statute requires the jury to make sрecific findings, the court must submit special interrogatories, cf.
DeGesualdo v. People,
Grable also аrgues that the trial court erred in sentencing him without first having requested that the jury determine *590 whether he acted in the “heat of passion.” Again, we agree.
A person who acts in the “heat of passion” cannot constitutionally be subjected to a greater penalty when he causes serious bodily injury than thаt which could have been imposed, had he caused the death of his victim.
People v. Montoya,
The People argue, however, that the defendant рresented no evidence that he acted in the “heat of passion.” Wе disagree.
Grable testified that he was first assaulted by the victims, both of whom were armed, and that he stabbed them both in self-defense. Where a defendant presеnts a plausible case for self-defense, heat of passion is an avаilable alternative inference from the evidence.
See People v. Miller,
The judgment is reversed and the cause is remanded for a new trial. On retrial, the court should submit a special interrogatory asking the jury to determine whether Grable acted upon a sudden heat of passiоn caused by a serious and highly provoking act of the intended victim affecting him suffiсiently to excite an irresistible passion in a reasonable person. See § 18-3-104(l)(c). C.R.S. 1973 (1978 Repl.Vol. 8). Further, a special interrogatory pursuant to § 16-11-309, C.R.S. 1973 (1978 Repl.Vol. 8) must be submitted to the jury with the instruction to answer the interrogatory only if the jury finds the defendant guilty of the offense charged.