*1 question objected The was not to at trial. We find no prejudicial error un- der these circumstances. instructed the improperly further claims the court
Appellant However, view of our disposition contention. agree do aid, with intent to induce or sale charging appellant the counts assignment on this of error. unnecessary it is to elaborate conspiracy, in- on the counts sale with intent to judgments The of conviction aid, of convic- conspiracy, hereby are reversed. duce drug affirmed. The hereby is dispensing dangerous on the count of tion to enter a judgment district court with directions is remanded cause of C.R.S. drugs, in violation conviction of to sale of narcotic 1963, 48-5-2, resentencing thereunder. appellant do not and MR. JUSTICE ERICKSON
MR. JUSTICE GROVES participate.
No. 26393 v. Sherman Lambert of the State of Colorado 1238) (539 P.2d August 1975. Decided *2 Moore, General, Bush, Attorney John John E. Deputy, Robert C. Lehnert, Assistant, for plaintiff-appellee. Andersen,
Ronald M. for defendant-appellant.
En Banc. MR. JUSTICE HODGES delivered the of the Court. opinion charged defendant Lambert was with burglary. arraignment, later, On he pled guilty. Two months on the date the case was scheduled for to a he jury, contendere, trial offered a nolo plea of which trial court accepted. He made application probation which six Approximately being months after on placed probation, the defendant filed a aside motion to set the nolo contendere plea. alleges motion the failure the trial court to with comply 16-7- 11(b) C.R.S. 1973. This statute and Crim. P. require that court must make certain it determinations before plea of guilty nolo contendere.
The defendant’s motion asserts he was not expressly advised by trial court of his and that the nolo contend- right. ere It wavied this also that the asserts defendant was not informed necessary the factual basis for the acceptance plea, of the nor was he questioned as the voluntary to nature of his The trial plea. after hearing, denied the motion and found in effect that upon accepting de- plea, fendant’s nolo contendere the requirements of the statute and the rule had been that the defendant was substantially complied consequences plea. aware of the supports In our the trial court’s denial of appeal and we the defendant’s motion therefore affirm. jury, the date case set for this defendant
On pleas attorney tendered nolo contendere. The defendant’s co-defendant the defendant and the given advisements to the trial court recited understanding thereof. defendant’s that defendant indi- forth statements to
Counsel’s pen- of the possible understanding cated his counsel, that at represented by to trial and be alties, proceed of his showing beyond a rea- evidence present would have to prosecution charged conviction. support offense doubt the elements sonable he understood the advisements the defendant if then asked The trial court being and that the of the offense attorney, the nature of his “yes.” Inquiry by The defendant answered as to that offense. regarding age questions included trial court also co-defendant, which ques- schooling. questioned court then The trial co-defendant, dealt vol- and statement on behalf of tioning then asked whether either defendant The trial court untariness of did not. they Both indicated any questions. had fail that the defendant was asked *3 does to show record right by understood the to trial jury court whether he by the trial of nolo contendere. See waiving by this plea that he was fact 11(b)(3). Crim. P. out, however, that defendant had previ be this pointed
It must and at his the matter was set for guilty” request, “not ously pled found, Thereafter, a the trial court from the evidence hearing, at charge cause to this defendant with presented, probable trial, of day of he moved withdrawal burglary. On scheduled which, of nolo contendere guilty” plea and tendered accord plea “not court, ing by statement to the was understood defendant to to counsel’s be of a equivalent guilty plea.
We record therefore demonstrates that the was believe this defendant withdrawing his “not by guilty” plea aware of the fact that fully his a of nolo he was a tering plea reached this determination before it accepted and that the trial court had of contendere. plea record, analysis review and of this entire we also hold From our the acceptance there a basis established for defend that factual determined from all the plea properly proce ant’s and that dures, the that this defendant’s was volun inquiries, plea statement tary. arguments
We
that
in his motion and
before this
note
defendant
court
that his
or that he
not
plea
involuntary
does
maintain
Rather,
making
argues
rights
waiving by
he was
this
aware
record the
this
exac-
expressly spread upon
court’s failure
that the trial
16-7-207,
C.R.S. 1973 and Crim.
precise compliance
titude
motion be
11(b),
that the defendant’s
requires
overriding consideration
steadfastly expressed
court has
a
of nolo contend-
guilty plea
plea
pertaining
in
a record
analyzing
by
“The formalistic recitation
is not required.
ere that
ritual
People v.
hearing
requisite.”
is not a constitutional
judge at
providency
Canino,
207,
(1973).
Colo.
If record as it does that the trial as court had voluntary sured itself that the defendant’s en intelligently with full knowledge nature and elements of the offense and waiver of accused lack of person, precise language as an then things record these is not of a valid re expressing in the itself reason to the trial court. verse again point out at time that the failure of a judge
make certain the record reflects full compliance with the rule statute and before he or a guilty, nolo con- tendere, frequently generates challenge as in this case. Time after time many opinions of this trial courts have been strenuously advised certain that sets showing to make forth a trial court compli- (b) with the ance statute and Crim. P. 11 when defendant enters a plea of nolo contendere. Full would di- compliance certainly challenges and this issue. appeals minish is affirmed. JUSTICE ERICKSON dissents.
MR. dissenting: MR. JUSTICE ERICKSON respectfully requirements I dissent. The of Crim. P. 11 ig- cannot be In the errors impunity. my nored which occurred in the provi- hearing require reversal. dency