People v. Dowdell

MR. JUSTICE ERICKSON

dissenting:

I respectfully dissent. The prosecution, utilizing section 16-10-102, C.R.S. 1973, appealed to determine whether the district court erred as a matter of law in ruling that third-degree assault (section 18-3-204, C.R.S. 1973), is not a lesser included offense of first-degree assault (section 18-3-202, C.R.S. 1973).

The majority opinion does not reach the issue which the prosecution concedes is the only issue.

The record does not support the majority opinion’s assertion that the defendant agreed to proceed on the third-degree assault charge. Moreover, the majority has provided a solution to the case which is not dealt with in the briefs which are before this court.

MR. JUSTICE GROVES joins me in this dissent.