Opinion
No. 23613
Decided August 23, 1971
Motion for post-conviction relief wherein defendant sought to be allowed to withdraw his guilty plea to aggravated robbery and that judgment hereon be set aside, asserting that events surrounding his plea showed that he had been twice placed in jeopardy in violation of state and federal constitutions. From denial of motion, error was brought.
Affirmed.
1. INDICTMENT AND INFORMATION — Amendment — Transposition of Names — Non-Prejudicial — Rule. Amendment transposing robbery victim's first and last names in information was not prejudicial to defendant and was one of form rather than substance within meaning of Colo. R. Crim. P. 7(e).
2. CONSTITUTIONAL LAW — Questioning — Plea — Voluntary — Aggravated Robbery — Transposition of Names — Victim — Double Jeopardy — Negative. Where court accepted guilty plea to aggravated robbery after careful questioning of defendant to determine that he voluntarily and knowingly entered such plea and district attorney proceeded to place in evidence details of the crime, and where court brought to district attorney's attention — shortly after questioning of first witness began — the transposition of victim's first and last names in the information, and matter was then continued for four days for filing of amended information, and where court on continued date once again accepted guilty plea after careful scrutiny as to the voluntary and knowing character of defendant's decision and evidence on behalf of People was then received in its entirely, held, under the circumstances, reviewing court fails to see how defendant has been placed in double jeopardy under either the Colorado and United States Constitutions.
Error to the District Court of Pueblo County, Honorable Matt J. Kikel, Judge.
Eugene T. Halaas, Jr., for plaintiff in error.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Michael T. Haley, Assistant, David A. Sorenson, Assistant, for defendant in error.
This writ of error is directed to the ruling of the trial court on a motion made pursuant to Rule 35(b). The plaintiff in error, hereinafter referred to as defendant, asserted in that motion that he should be allowed to withdraw his plea of guilty to aggravated robbery, and the judgment thereon should be set aside, because the events surrounding his plea showed that he had been twice placed in jeopardy in violation of both the Colorado and United States Constitutions.
Defendant appeared before the court charged in one information with three separate counts: viz., aggravated robbery, assault with a deadly weapon, and conspiracy to commit aggravated assault and assault with a deadly weapon. After careful questioning of the defendant to determine that he voluntarily and knowingly entered his plea of guilty to aggravated robbery, the court accepted the plea, and the district attorney proceeded to place in evidence the details of the crime under C.R.S. 1963, 39-7-8. The first witness called was the victim. Shortly after questioning began, the court brought to the district attorney's attention the transposition of the victim's first and last names in the information. The matter was thereupon continued for four days for the filing of an amended information. On the date to which the hearing had been continued the court once again accepted a guilty plea after careful scrutiny as to the voluntary and knowing character of the defendant's decision. The evidence on behalf of the People was then received in its entirety.
[1,2] In two recent cases this court has rejected claims that similar amendments had a prejudicial effect on the defendant. Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971) (amended name of owner of premises in burglary prosecution); and Diebold v. People, 175 Colo. 96, 485 P.2d 900 (1971) (amended information to show that victim was in lawful possession rather than ownership in grand larceny prosecution). The amendment here involved was not prejudicial to the defendant, and was one of form rather than substance within the meaning of Colo. R. Crim. P. 7(e). The cases cited by the defendant are not similar and are not sufficiently analogous as to facts to constitute authority here. We fail to see how the defendant has been placed in double jeopardy under either the Colorado or United States constitutions.
Judgment affirmed.
MR. CHIEF JUSTICE PRINGLE, MR. JUSTICE DAY and MR. JUSTICE HODGES concur.