Gomez v. Ensor , 1984 Colo. App. LEXIS 1322 ( 1984 )

TURSI, Judge,

dissenting.

I respectfully dissent to Part II of the majority opinion.

The statute controlling the appeal of Gomez’ original conviction is contained in § 13-6-310(2), C.R.S. This section reads:

“The district court shall review the case on the record on appeal and affirm, reverse, remand, or modify the judgment; except that the district court, in its discretion, may remand the case for a new trial with such instructions as it may deem necessary, or it may direct the case be tried de novo before the district court.” (emphasis supplied)

Here, the record shows that the district court did not choose to exercise its discretionary prerogative of remanding the case for new trial. Neither the county court nor this court may exercise that discretion for it. Therefore, if the People were dissatisfied with the refusal to remand, their remedy was either to seek clarification from the district court in a timely manner or by petition for certiorari to the supreme court pursuant to § 13-6-310(4), C.R.S. See People v. Dee, 638 P.2d 749 (Colo.1981); cf. People v. Dement, 661 P.2d 675 (Colo.1983).

I do not find the authorities relied upon by the majority to be persuasive. They are statutorily and factually inapposite. For example, in Stafford v. People, 165 Colo. 328, 438 P.2d 696 (1968) cited by the majority, the supreme court specifically remanded the matter for retrial. Further, none of the cases relied upon addressed § 13-6-310 which was passed in 1964 as part of the legislative court reform pursuant to the amendment of Article VI of the Colorado Constitution, adopted in 1962.

I would therefore reverse the judgment of the trial court in this matter and remand with instructions to grant Gomez the relief requested in his C.R.C.P. 106 complaint.