*1 No. 23556. People v. The
Leandro C. Quintana of Colorado. State 210) (455 P.2d Rehearing 1969. denied June
Decided June *2 plaintiff for R. L. Salazar, Robert Pitler, Francis error. Attorney General, Duke W. John P. Dunbar, Moore.,
Deputy, Hoecker, Assistant, L. Robert error.
En Banc. Hodges
Mr. Justice delivered of the Court. granted was this to review Certiorari disposition appeal on an to the of the Court County City County from an order Denver City County order Denver, which Court charge. jury a drunk vacated verdict of charged County Court Quintana in the was Defendant driving, separate count, he was with drunk years. both counts were entered five Pleas of not guilt on the The issue of defendant’s the defendant. jury presented first substantive was guilty. County pro- then found the defendant try presented before the same the issues ceeded During proceeding, course of the second count. County a mistrial and the Court declared discharged. motion Thereafter, the defendant filed a requesting verdict of vacate the *3 grounds on the first count on the that the same granted County must hear both counts. The this The motion and ordered both counts to be retried. vacating People, contending that the trial court erred in ordering re- the trial of both verdict on the first count and appealed Superior After
counts, Court. legal argument, review and the Court reversed judgment of Court, that the con- ordered viction on the first count also ordered reinstated, be and that a retrial be had on the second count. juncture pe- Quintana this in the
At claiming this court for a of titioned the writ certiorari disposition Superior Court’s erroneous in and law prejudicial presented The for our him. crucial issue driving charge determination is whether a drunk al- 1963, 13-5-30, which includes a second count C.R.S. leging previous conviction for drunk within years, five must be tried to as a the same matter presented of the facts law under here. precise pre-
This issue has not come before this court viously. granted. Certiorari was therefore 13-5-30(1) provides
C.R.S. as follows: any person “It a misdemeanor for who any intoxicating liquor vehicle to drive of state.” this provided: statute, it 5 of this in subsection And, “Every violation person is convicted who by im- punished upon first conviction shall be section prisonment day one than or more one for not less than by dollars year, one hundred of not less than or a fine by such fine or both dollars, or one thousand more than subsequent con- or imprisonment, and a second imprison- punished years be shall viction within five days ninety more than or less than ment not year the court, in the discretion and, fine one thousand more than dollars or less than one hundred imprisonment. dollars, or both such fine provided upon period imprisonment sec- as minimum subsequent of this for a violation or ond mandatory, no shall have and the court shall be section discretion to therefor.” suspend grant probation sentence or to (Emphasis charging complaint drunk
A the defendant or and also with second under this statute years, pro requires subsequent five conviction within subject separate cedurally count. that each be proof be offered convictions cannot The use guilt first has been established. until Heinze 13-5-30(1) (5) create does not
C.R.S.
purpose
separate
these
two
offenses. The obvious
statutory provisions
regulate
punishment
is to
Righi
driving.
single
imposed upon
offense
*4
People,
It is our considered that when confronted comparable transpired with a situation here, to what isit incumbent on a trial refuse to set aside a promptly proceed impanel verdict and to another single to determine the issue of whether the defendant person previously identical with the convicted of drunk driving. procedure public This is in the interest, and it rights where does not violate of the defendant’s speedy to a fair trial, it shall be followed trial comparable court under the circumstances this case only.
The defendant cites several Colorado cases in volving being persuasive our habitual criminal statute as of his contention that the substantive crime of drunk and the issue be tried must jury. People, to the same In Routa v. majority ap mentioned that
proved procedure dissenting opinion outlined filed to the effect conviction of charge concerning crime, the substantive defendant’s previous immediately convictions became triable being without Also, resworn. v.Wolf
300 is made statement 581, a similar 487, issue a habitual criminal count.
in connection resemblance however, bears cases, of these in neither here. It considering are of we procedures to the facts (C.R.S. Act Habitual Criminal be noted that our also to et the clearly indicates seq.) 39-13-1, 1963, of prosecution. the for both segments must be utilized (C.R.S. hand, statute the other our On such require- for no 13-5-30) procedural provides 1963, charge ag- of a drunk in the prosecution ment within five of conviction gravated by prior years. of the Supreme
We note with interest an opinion 1111, Zeimer, P.2d State v. 10 Utah 2d. 347 of Utah even though There the court held that 79 2d 821. A.L.R. that “the the habitual criminal statute provided Utah to the same jury,” shall be tried forthwith defen- of the granting affirmed an order the trial court issue his status as trial the solely dant new during habitual criminal after mistrial portion or the trial. It there was no suf- good was stated ficient reason the have intended why legislature should its mandate this situation and that apply pro- no effect on ac- right cedure had prejudicial to a fair cused trial. Traynor Supreme
Justice California Morton, People ruling 2d Cal. a similar a habitual criminal involving fact situation case stated: from an appellate
“When sole remand question conviction, alleged involves proof prior to retry is no reason to require parties offenses when the cor- guilt primary question is not rectness of the determination of this question either There is challenged by nothing party. prejudicial involved in a limited new trial on the issue of the chal- different from that lenged prior tried the issue offenses. guilt primary clearly proof issue convictions are That adjudi- *6 prior or the severable.... Proof convictions not do that the defendant is an habitual criminal cation merely provide for in- involve but substantive offenses, punishment fall creased those convictions whose important scope re- these statutes.... The primary prior con- látion between the offenses and the imposed, charged victions is, the sentence to be therefore, participate and the does not in that.” disposition-made We conclude the remand appeal on the from the proper. Judgment affirmed. Day
'Mr. Justice dissenting. Day Justice
Mr. dissenting: procedural I-wish to to in- dissent emasculation volved It herein announced this date. nothing only can do but utter to add confusion not future attempting pronouncements cases but in reconcile this heretofore made on similar statute. my
I fear that brethren have statute misconceived the 13-5-30(5). They here involved, C.R.S. have dem- by comparing onstrated this toit the habitual criminal comparison statute. There is basis for the sta- between tutes, but the effect under one consideration here is not the as the habitual criminal act. The habitual separate criminal act is a statute unto-itself not con- part any particular nected with or a of- substantive procedural fense. punishment, It is and in aid but respect only is in that it is similar to the statute under consideration here.
The statute in the case under consideration concerns namely, driving one liquor. offense, only charged That was the offense information, be con- could offense only succinctly described the situation victed. I believe Righi this court one almost identical a statute
interpreting embellishments). We, a few later (with consideration **“* does Righi case the statute: said [It] but rather is intended offenses separate create two single ag- imposed regulate punishment counts.” (Emphasis in two gravated offense described expansive description In the same in a more only could be statute, said that we on the two counts. and not sentences sentence separate meant commented that the statute We further for the substantive the sentence imposed increase the additional count, crime in one *7 circumstance to the pre- only aggravated relating vious one. Reeder, Nickle v. much the same thing
We said count 921 as “The second follows: offense, is not in itself an but determines the punishment of- of a be inflicted second may the second only purpose The fense five years. in context conviction, the former to present into two inquiry its essential merely separated parts Thus, and clearly.” and did so briefly (Emphasis if there i.e., single offense, information, the date time alleged the second count merely describing driven, second time the has so it be, in my can trial. opinion, only not to This is the District could say Attorney mistrial, if he have dismissed the second count after the have so and in that connection then would desired, error for the Judge been vacate the verdict But it is the District Attorney the first count. who has the election who in formulating made persists of “second offense the influ- the charge he should way procedurally ence.” If he it that wants I one and inseparable. the ease as required present under this one two trials to two juries cannot conceive offense.
No. 24108. Brouwer District the First A. Sharon Judicial District and The State Colorado judges Pile,
Honorable Roscoe one of therein. (455 207) Decided June