People v. Jamerson

580 P.2d 805 (1978)

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jon Randolph JAMERSON, Defendant-Appellee.

No. 27979.

Supreme Court of Colorado, En Banc.

July 3, 1978.

*806 Nolan L. Brown, Dist. Atty., John R. Barksdale, Deputy Dist. Atty., Golden, for plaintiff-appellant.

Brownstein, Hyatt, Farber & Madden, Mark F. Leonard, Richard S. Bayer, Denver, for defendant-appellee.

ERICKSON, Justice.

On May 12, 1977, the defendant, Jon R. Jamerson, was convicted by a jury of theft by receiving. [1] Shortly thereafter, on May 16, 1977, we held a portion of the theft by receiving statute unconstitutional in People v. Johnson, Colo., 564 P.2d 116 (1977). On June 27, 1977, the trial court, on the basis of our decision in People v. Johnson, supra, granted the defendant's motion for a new trial. The case was dismissed prior to retrial on December 20, 1977, on the ground that the defendant's right to a speedy trial had been violated, since he had not been brought to trial within three months of the new trial order, pursuant to Crim.P. 48(b)(6)(V) and section 18-1-405(6)(e), C.R.S. 1973. We reverse and remand for a new trial.

The prosecution contends on appeal that a new trial order granted after trial and pursuant to a motion for new trial is equivalent to a reversal on appeal for speedy trial purposes. The trial court's characterization of its decision as a mistrial, therefore, is asserted to constitute error. We agree.

Neither Colorado's speedy trial statute, section 18-1-405, C.R.S. 1973, nor our dismissal rule, Crim.P. 48, distinguishes mistrials from new trials. Black's Law Dictionary (rev. 4th ed. 1968), provides the following definitions:

"MISTRIAL. An erroneous, invalid, or nugatory trial; a trial of an action which cannot stand in law because of want of jurisdiction, or a wrong drawing of jurors, or disregard of some other fundamental principle." (Citations omitted.) "TRIAL. New trial. A re-examination of an issue of fact in the same court after *807 a trial and decision by a jury or court or by referees. . . . A re-examination of the issue in the same court, before another jury, after a verdict has been given. . . . A re-examination in the same court of an issue of fact, or some part or portions thereof, after the verdict by a jury, report of a referee, or a decision by the court." (Citation omitted.)

Similarly, the court in In re Estate of Bartholomae, 261 Cal. App. 2d 839, 68 Cal. Rptr. 332 (1968), declared:

"A mistrial and a new trial are unlike in both name and effect. A mistrial is equivalent to no trial; it is a nugatory trial. A new trial recognizes a completed trial which for sufficient reasons has been set aside so that the issues may be tried de novo. . . . "

We approve of the foregoing definitions and statements. The crucial consideration in applying these principles to a jury trial is whether a verdict has been rendered after the trial is concluded. Prior to the entry of a verdict by a jury, a mistrial is procedurally correct. But once a verdict has been entered, the trial is complete for purposes of appellate review, and a new trial motion can only result in the entry of an order for a new trial. A motion for new trial, although filed in the trial court, is the initial step in the appellate process.

We hold, therefore, that a new trial order pursuant to a new trial motion is similar to a reversal on appeal for purposes of our speedy trial provisions and results in a six-month speedy trial period. Crim.P. 48(b)(2); section 18-1-405(2), C.R.S. 1973.

Accordingly, the judgment of dismissal is reversed, and the cause is remanded for a new trial.

HODGES, J., does not participate.

NOTES

[1] Section 18-4-410, C.R.S. 1973 (1977 Supp.).