182 Colo. 228 - People v. Smith

How this case has been cited

Cited by 37 later decisions — most recently June 2005 · most notably People v. McKenna (1978), People v. Mascarenas (1983)

37 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

MR. JUSTICE GROVES

¶1specially concurring:

¶2I concur in the majority opinion, but wish to say something concerning point III. I would not base the result as the majority opinion is grounded.

¶3As is stated in the majority opinion, the defendant has been placed in jeopardy as to the misdemeanor count. I assume that proof of all of the elements of the misdemeanor are necessary to a conviction of either felony count; and, to have a conviction of either felony count, there must be proof of additional elements. In spite of Crane v. People, 91 Colo. 21, 11 P.2d 567 (1932), I also assume that, if all evidence could have been considered as to all counts and if the jury *238had acquitted as to the misdemeanor count, the guilty verdicts as to the felonies would be rendered impotent. The question involved then becomes, Does the order sustaining the motion to dismiss have the effect of a finding of not guilty which ordinarily would permit the conviction of either felony count from standing?

¶4Under the circumstances here, it would be a fiction to say that the order sustaining the motion to dismiss constituted a determination as to the elements of the misdemeanor.