People v. Bovard

Opinion by

Judge CARPARELLL.

Defendant, Robert M. Bovard, appeals the judgment of conviction entered on a jury verdict finding him guilty of driving under the influence of alcohol. We dismiss defendant's appeal for lack of subject matter jurisdiction.

Defendant was charged in county court with three traffic violations, including one count of driving under the influence of alcohol. The county court denied defendant's motion to suppress the results of his roadside sobriety tests, the breath test, and the officer's observations of defendant's physical characteristics. However, it suppressed statements defendant made at the seene.

The case was tried to a county court jury, and defendant was convicted of driving under the influence. The court and parties later determined that the tape-recorded record of the suppression hearing had been lost.

Defendant then appealed his conviction to the district court and challenged both the county court's denial of the motion to suppress and its refusal to conduct a new hearing on that motion to establish a record for appeal.

About three months after defendant filed his notice of appeal with the district court, he filed an unopposed motion for trial de novo, pursuant to Crim. P. 37(g), on the ground that the district court did not have an adequate record to review the issues on appeal. The district court granted defendant's motion.

After a trial, the district court jury found defendant guilty of driving under the influence of alcohol.

L.

Defendant argues that this court has jurisdiction to consider his appeal of the district court judgment because doing so will preserve his due process right of automatic review under § 16-12-1011, C.R.S.2003. We disagree.

The United States and Colorado Constitutions both prohibit the state from depriving any person of life, liberty, or property without due process of law. Consequently, the supreme court has held that appeals in criminal cases are a matter of right. See In re Griffin, 152 Colo. 347, 382 P.2d 202 (1963); In re Patterson, 186 Colo. 401, 317 P.2d 1041 (1957).

Section 16-12-101 provides: "Every person convicted of an offense under the statutes of this state has the right of appeal to review the proceedings resulting in conviction. The procedures to be followed in any such appeal shall be as provided by applicable rule of the supreme court of Colorado."

The applicable rule of the supreme court, Crim. P. 37(a), grants every defendant convicted in a county court the right to appeal the conviction to the district court of the county. Similarly, in § 13-6-810(1), C.R.S. 2003, the General Assembly has provided that appeals from final judgments of the county courts must be taken to the district court of the county.

With regard to the nature of the appeal, the supreme court has provided that, "[f for any reason an adequate record cannot be certified to the district court the case shall be tried de novo in that court." Crim. P. 37(g). Similarly, although § 13-6-810(2), CRS. 2003, grants the district court authority to review the county court judgment on the record, it also grants the district court discretion to try the case de novo.

Section 13-6-310(4), C.R.S.2003, states that, in county court cases that have been appealed to the district court, a defendant may further appeal a "determination of the district court ... only upon a writ of certio-rari issued in the discretion of the supreme court." Crim. P. 37(h), which addresses enforcement of judgments in such cases, is consistent with the statute. Although the rule provides that, when the district court disposes of am appeal from the county court after trying the case de novo, the judgment on appeal is enforceable as that of the district court, it also recognizes that the judgment cannot be immediately enforced when there is "further review by the Supreme Court upon writ of certiorari."

Certiorari review by the supreme court constitutes an "appellate review." City of Wheat Ridge v. Cerveny, 913 P.2d 1110 (Colo.1996); People ex rel. Umion Trust Co. v. Superior Court, 175 Colo. 391, 488 P.2d 66 (1971); Bill Dreiling Motor Co. v. Court of Appeals, 171 Colo. 448, 468 P.2d 87 (1970).

Here, defendant does not contend that he was denied due process in the county court trial. After he was convicted there, he exercised his right under Crim. P. 37(a) and § 13-6-310(1) to appeal his conviction to the district court. In the district court, he challenged the county court denial of his motion to suppress and his motion for a new suppression hearing to reconstruct the record on that issue. Thus, defendant, in fact, "appealed from the county court to the district court, as provided in section 13-6-310." Section 13-4-102(1)(f), C.R.S.2003 (excluding appeals of district court final judgments in such cases from jurisdiction of Court of Appeals).

At that time, he had the right to seek district court review of those rulings and to request that the district court remand the case to the county court for either reconstruction of the record or a new trial. Instead, defendant asked the district court to try the case de novo. Thus, defendant elected trial de novo as his appellate procedure.

In addition, after entry of the district court judgment, defendant had the right to seek additional appellate review by the supreme court as provided in Crim. P. 37(h) and § 13-6-310(4).

For these reasons, we conclude that defendant has not been deprived of due process or of his right of appeal.

IL.

Defendant also argues that this court has jurisdiction over appeals from final judgments of the district courts pursuant to § 13-4-102(1), C.R.98.2003, and that the exception stated in § 13-4-102(1)(f) does not apply here because he is appealing a final district court judgment and not a county court decision. Again, we disagree.

"This court has no authority to enlarge upon the jurisdiction that has been granted to it by statute." People in Interest of D.B., 855 P.2d 27, 28 (Colo.App.1993); see also Bill Dreiling Motor Co. v. Court of Appeals, supra; Joel L. Schaffer, P.C. v. Christopher M. Sullivan, P.C., 844 P.2d 1327 (Colo.App.1992); People v. Meyers, 43 Colo.App. 63, 598 P.2d 526 (1979).

The grant of jurisdiction to this court in § 13-4-102 is consistent with the rules and statutes already discussed. Although § 13-4-102 grants this court initial jurisdiction over appeals from most final judgments of the district courts, it excludes "(clases appealed from the county court to the district court, as provided in section 13-6-810." Section 13-4-102(1)(f); see also People v. Meyers, supra.

In People v. Smith, 874 P.2d 452, 453 (Colo.App.1993), a division of this court noted:

In the case of each of [the five exceptions listed in § 13-4-102(1)(b) through (£,] a final judgment has been entered by the district court. However, because of the subject matter of the case, the General Assembly has determined that any appeal should go to our supreme court rather than being entertained by this court.

Although this court has initial jurisdiction over most appeals from final judgments of the district courts, it does not have such jurisdiction here because this case was appealed from the county court to the district court under § 18-6-310. See § 13-4-102(1)@).

Thus, we conclude that this court does not have jurisdiction over appeals in cases in which the defendant appeals from the county court to the district court and the district court enters final judgment after a trial de novo. See People v. Smith, supra; People v. Meyers, supra.

The appeal is dismissed.

Judge NIETO concurs. Judge TAUBMAN dissents.