People v. Rhorer

Judge METZGER

concurring in part and dissenting in part.

I concur in the affirmance of the denial of defendant’s Crim.P. 35(c) motion. However, I respectfully dissent from the reversal of defendant’s burglary conviction and the imposition of a conviction for a lesser offense.

Section 18-6-803.5(2), C.R.S. (1996 Cum. Supp.) provides that: “Violation of a restraining order is a class 3 misdemeanor when the court order violated has been issued pursuant to ... sections 14-4-101 to 14-4-104, C.R.S.” This provision became effective July 1,1992.

Colo.Sess. Laws 1989, ch. 139, § 14-4-102(1) at 783 authorized county and district courts to issue temporary and permanent restraining orders. Colo.Sess. Laws 1989, eh. 139, § 14-4-102(2) at 783 provides: “A temporary or permanent restraining order to prevent domestic abuse may include: (a) Restraining a party from threatening, molesting, injuring, or contacting any other party or the minor children of either of the parties .... ” This provision became effective April 19,1989.

Colo.Sess. Laws 1991, eh. 127, § 14-4-102(1) at 743 added municipal courts of record, if authorized by the municipal governing body, to those courts empowered to issue temporary and permanent restraining orders to prevent domestic abuse. This provision became effective April 4,1991.

The offense here occurred on September 7, 1992. As of that date, violation of a no contact order issued by a municipal court was a class 3 misdemeanor. Thus, that crime was an appropriate predicate offense for the crime of burglary. Accordingly, I would reject defendant’s contention and affirm his burglary conviction.