People v. Clerkin , 1981 Colo. App. LEXIS 904 ( 1981 )

KELLY, Judge.

The defendant, Patrick Edwin Clerkin, was charged with assault in the second degree, resisting arrest, and criminal mischief. The defendant moved to dismiss pursuant to the provisions of § 18-1-408(2), C.R.S. 1973 (1978 Repl.Vol. 8). The trial court dismissed count 3, the charge of criminal mischief, but denied the motion as to the remaining counts. The defendant thereupon prosecuted this appeal.

During oral argument of the case, the court inquired whether counts 1 and 2 of the information are still pending and remain to be tried. Upon receiving an affirmative answer from both counsel, and after consultation, the court dismissed the appeal because there is no final judgment. This opinion elaborates the reasons therefor.

The defendant relies on the authority of County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977). That case is not dispositive of the issue, because it arises in a different procedural context. In Ruth, the accused was charged in county court and sought review in district court pursuant to C.R.C.P. 106. Accordingly, the action in district court was civil in nature, see also Thomas v. County Court, 198 Colo. 87, 596 P.2d 768 (1979), the judgment of the district court therein was final, and the appeal was properly pursued in this court. Here, the criminal prosecution was initiated in district court, and there is no final judgment.

Since this court is without jurisdiction to hear original writs, see C.A.R. 21, the appeal is dismissed.

VAN CISE and TURSI, JJ., concur.