Schrecongost v. People

810 P.2d 1068 | Colo. | 1991

Dissenting Opinion

Justice QUINN

dissents.

For the reasons stated in my dissenting opinion in People v. Henderson, 810 P.2d 1058, decided today, I dissent from this court’s affirmance of the judgment of the court of appeals.

I am authorized to say that Justice LOHR and Justice KIRSHBAUM join in this dissent.

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Lead Opinion

Justice ERICKSON

delivered the Opinion of the Court.

We granted certiorari to review People v. Schrecongost, 796 P.2d 45 (Colo.App.1990). In Schrecongost, the court of appeals held that the trial court did not abuse its discretion by sentencing the defendant to consecutive sentences for second-degree kidnapping involving sexual assault,¹ and first-degree sexual assault.²

After Schrecongost filed his appeal, but before the court rendered its decision, another division of the court of appeals announced People v. Henderson, 794 P.2d 1050 (Colo.App.1990), which held that the crime of sexual assault merged into second-degree kidnapping involving sexual assault. The court of appeals, based on Henderson, denied Schrecongost’s motion to filed supplemental briefs regarding the merger doctrine and consecutive sentences based on Henderson. We granted certiorari in both this case and Henderson to review whether the doctrine of merger barred convictions and cumulative sentences for sexual assault and second-degree kidnapping involving sexual assault.

In People v. Henderson, 810 P.2d 1058 (Colo.1991), we reversed the court of appeals and held that sexual assault is not a lesser included offense of second-degree kidnapping, and therefore that the doctrine of judicial merger did not bar convictions and cumulative sentences for both offenses. Henderson controls the resolution of the issue in this case.

Accordingly, we affirm the judgment of the court of appeals.

QUINN, J., dissents, and LOHR and KIRSHBAUM, JJ., join in the dissent.

1 . § 18 — 3—302(3)(a), 8B C.R.S. (1986).

2 . § 18-3-402, 8B C.R.S. (1986).