Zubiate v. Colorado
Annotate this CaseIn this case, the issues presented for the Colorado Supreme Court’s review implicated: (1) whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies; and (2) whether driving under revocation (“DUR”) is a lesser included offense of aggravated driving after revocation prohibited (“aggravated DARP”). The Colorado Supreme Court addressed similar issues in four cases at the same time as this case, captioned as “Reyna-Abarca v. Colorado,” (2017 CO 15, ___ P.3d ___). In “Reyna-Abarca,” the Court concluded that unpreserved double jeopardy claims could be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. Applying those rulings here, the Court concluded that the appellate court in “Zubiate v. Colorado,” (2013 COA 69, ___ P.3d ___), correctly (1) conducted plain error review of Vanessa Zubiate’s unpreserved double jeopardy claim and (2) determined that DUR was not a lesser included offense of aggravated DARP (although the Supreme Court’s analysis differed somewhat).
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