People v. Jamerson

Jul 3, 1978
27979
Reporters:
, ,
Before:
Erickson
MR. JUSTICE ERICKSON

delivered the opinion of the Court.

On May 12, 1977, the defendant, Jon R. Jamerson, was convicted by a jury of theft by receiving. 1 Shortly thereafter, on May 16, 1977, we held a portion of the theft by receiving statute unconstitutional in People v. Johnson, 193 Colo. 199, 564 P.2d 116 (1977). On June 27, 1977, the trial court, on the basis ‍‌‌‌​‌​​‌​​‌​​​​‌‌‌‌‌‌‌‌‌‌‌‌​‌‌​​‌​​‌‌​‌‌‌‌​‌​​​​‌​‌​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌‌‌‌‌​‌‌​‌‌​​​‌‌​‌‌‌‌​​​‌‍of our decision in People v. Johnson, supra, granted the defendant’s motion for a new trial. The case was dismissed prior to retrial on December 20, 1977, on the ground that the defendant’s right to a speedy trial had been violated, since he had not been brought to trial within three months of the new trial order, pursuant to Crim. P. 48(b)(6)(V) and section 18-l-405(6)(e), C.R.S. 1973. We reverse and remand for a new trial.

The prosecution contends on appeal that a new trial order granted after trial and pursuant to a motion for new trial is equivalent to a reversal on appeal for speedy trial purposes. The trial court’s characterization of its decision ‍‌‌‌​‌​​‌​​‌​​​​‌‌‌‌‌‌‌‌‌‌‌‌​‌‌​​‌​​‌‌​‌‌‌‌​‌​​​​‌​‌​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌‌‌‌‌​‌‌​‌‌​​​‌‌​‌‌‌‌​​​‌‍as a mistrial, therefore, is asserted to constitute error. We agree.

Neither Colorado’s speedy trial statute, section 18-1-405, C.R.S. 1973, nor our dismissal rule, Crim. P. 48, distinguishes mistrials from new trials. Black’s Law Dictionary (rev. 4th ed. 1968), provides the following definitions:

“MISTRIAL. An erroneous, invalid, or nugatory trial; a trial of an action which cannot stand in law because of want of jurisdiction, or a wrong drawing of jurors, or disregard of some other fundamental principle.” (Citations omitted.)
“TRIAL. New trial. A re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees. . . . A reexamination of the issue in the same ‍‌‌‌​‌​​‌​​‌​​​​‌‌‌‌‌‌‌‌‌‌‌‌​‌‌​​‌​​‌‌​‌‌‌‌​‌​​​​‌​‌​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌‌‌‌‌​‌‌​‌‌​​​‌‌​‌‌‌‌​​​‌‍court, before another jury, after a verdict has been given. . . . A re-examination in the same court of an issue of fact, or some part or portions thereof, after the verdict by a jury, report of a referee, or a decision by the court.” (Citation omitted.)

Similarly, the court in In re Estate of Bartholomae, 261 Cal. App.2d 839, 68 Cal. Rptr. 332 (1968), declared:

“A mistrial and a new trial are unlike in both name and effect. A mistrial is equivalent to no trial; it is a nugatory trial. A new trial recognizes a completed trial which for sufficient reasons has been set aside so that the issues may be tried de novo. . . .”

We approve of ‍‌‌‌​‌​​‌​​‌​​​​‌‌‌‌‌‌‌‌‌‌‌‌​‌‌​​‌​​‌‌​‌‌‌‌​‌​​​​‌​‌​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌‌‌‌‌​‌‌​‌‌​​​‌‌​‌‌‌‌​​​‌‍the foregoing definitions and statements. The crucial consideration in applying these principles to a jury trial is whether a verdict has been rendered after the trial is concluded. Prior to the entry of a verdict by a jury, a mistrial is procedurally correct. But once a verdict has been entered, the trial is complete for purposes of appellate review, and a new trial motion can only result in the entry of an order for a new trial. A motion for new trial, although filed in the trial court, is the initial step in the appellate process.

We hold, therefore, that a new trial order pursuant to a new trial ‍‌‌‌​‌​​‌​​‌​​​​‌‌‌‌‌‌‌‌‌‌‌‌​‌‌​​‌​​‌‌​‌‌‌‌​‌​​​​‌​‌​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌‌‌‌‌​‌‌​‌‌​​​‌‌​‌‌‌‌​​​‌‍motion is similar to a reversal on appeal for purposes of our speedy trial provisions and results in a six-month speedy trial period. Crim. P. 48(b)(2); section 18-1-405(2), C.R.S. 1973.

Accordingly, the judgment of dismissal is reversed, and the cause is remanded for a new trial.

MR. JUSTICE HODGES does not participate.

Notes

1

Section 18-4-410, C.R.S. 1973 (1977 Supp.).