Waddell v. Colorado
Annotate this CaseDavid Waddell pled guilty to: possession of a controlled substance, a level 1 drug felony; attempted aggravated robbery, a class 4 felony; and vehicular eluding, a class 5 felony. At Waddell’s combined sentencing hearing, the trial court failed to impose the following surcharges: drug offender; rural alcohol and substance abuse; restorative justice; offender identification fund (“genetic testing"); victims and witnesses assistance and law enforcement fund (“victims assistance”); and crime victim compensation fund (“victim compensation”). After the sentencing hearing, however, the court included these surcharges on Waddell’s mittimuses. Waddell appealed his sentences. As relevant here, he argued that the late imposition of the surcharges violated his federal and state constitutional rights against double jeopardy. In an unpublished decision, a unanimous division of the court of appeals disagreed. After review, the Colorado Supreme Court held the drug offender surcharge, which was long ago declared a form of punishment, was statutorily mandated and, thus, the trial court’s failure to order it in open court rendered Waddell’s sentence on his level 1 drug felony conviction illegal and subject to correction at any time pursuant to Crim. P. 35(a). Therefore, the trial court’s imposition of that surcharge after the sentencing hearing did not violate Waddell’s rights under the Double Jeopardy Clauses of the United States and Colorado Constitutions. The trial court's imposition of the other five surcharges after the sentencing hearing also did not infringe Waddell's constitutional rights: they were statutorily mandated and subject to correction at any time pursuant to Crim. P. 35(a). The Supreme Court remanded this case to give Waddell an opportunity to request a waiver of the surcharges assessed.
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