2021 Colorado Code
Title 18 - Criminal Code
Article 1 - Provisions Applicable to Offenses Generally
Part 3 - When Prosecution Barred by Former Proceedings
§ 18-1-302. Second Trial Barred by Former Prosecution for Different Offense

1. Although a prosecution is for a violation of a different provision of law than a former prosecution or is based on different facts, it is barred by the former prosecution under the following circumstances:
   1. The former prosecution resulted in an acquittal or a conviction as defined in section 18-1-301 (1)(a) and (1)(c) and the subsequent prosecution is for:
      1. Any offense of which the defendant could have been convicted under the allegation of the complaint, information, or indictment of the first prosecution; or
      2. The same conduct, unless the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil or the second offense was not consummated when the former trial began.

   2. The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that necessarily required a determination inconsistent with a fact that must be established for conviction of the second offense.
   3. The former prosecution was improperly terminated, as improper termination is defined in section 18-1-301 (1)(d) and (2), and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.

History. Source: L. 71: R&RE, p. 397, § 1. C.R.S. 1963: § 40-1-402 .

This section must be read to deal with multiple prosecutions in the same jurisdiction since § 18-1-303 sets out the circumstances in which a second trial in Colorado is barred by a former prosecution in another jurisdiction. Clearly, this section cannot be construed to bar separate prosecutions for different state and federal offenses arising out of the same series of transactions, for such trials could not be held in the same court. People v. Hines, 194 Colo. 284 , 572 P.2d 467 (1977).

The test of double jeopardy as to different offenses is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable. Conviction and sentences for two distinct offenses did not put appellees twice in jeopardy where the Colorado statutes separately define the offenses of burglary and assault with intent to rob. Burglary is a crime against property; it is the unlawful entering of a dwelling house or building with the intent to commit larceny or other felony. Assault with intent to rob is a crime directed against a person; it is an unlawful attempt coupled with a present ability to commit a violent injury on the person, with the specific intent to commit robbery. The offenses were separate and independent and the imposition of two consecutive sentences were within the law and did not constitute a violation of any federally protected right. Trujillo v. Patterson, 266 F. Supp. 901 (D. Colo. 1966 ), aff'd per curiam, 389 F.2d 1003 (10th Cir. 1967).

Collateral estoppel is an integral part of the concept of double jeopardy. People v. Horvat, 186 Colo. 202 , 527 P.2d 47 (1974).

Simply stated, collateral estoppel bars relitigation between the same parties of issues actually determined at a previous trial. People v. Horvat, 186 Colo. 202 , 527 P.2d 47 (1974).

Subsection (1)(a)(II) is designed to protect a defendant from having to relitigate an issue of ultimate fact once it has been determined by a valid and final judgment. When a previous judgment was based on a general verdict, a court is required to examine the record, taking into account the pleadings, evidence, charge, and other relevant matters, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose. People v. Matheson, 671 P.2d 968 (Colo. App. 1983).

This section protects a defendant from having to relitigate a factual issue once it has been determined by a valid and final judgment. The doctrine of collateral estoppel generally precludes a later trial if a rational fact-finder could not have grounded its earlier verdict upon an issue other than that upon which a later conviction would necessarily be based. People v. Allen, 944 P.2d 541 (Colo. App. 1996).

Collateral estoppel and invalidity of dual sovereignty in Colorado barred trial. Where defendant was tried in a municipal court for reckless and careless driving in violation of that municipality's traffic code, he could not later be tried in district court for feloniously inflicting bodily injury while under the influence of intoxicating liquor by operating and driving a motor vehicle in a reckless, negligent, or careless manner, in violation of the state code, because of the doctrine of collateral estoppel, and because dual sovereignty is no longer valid in Colorado. People v. Horvat, 186 Colo. 202 , 527 P.2d 47 (1974).

Compulsory joinder broader than “same offense” principle or collateral estoppel. The compulsory joinder requirement of § 18-1-408 (2) is broader than both the “same offense” principle of double jeopardy as codified in § 18-1-301 and the collateral estoppel effect of a prior determination of an ultimate fact as outlined in this section. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); Corr v. District Court, 661 P.2d 668 (Colo. 1983).

This statutory prohibition against a later prosecution does not apply if the offense in the later prosecution necessarily requires proof of a fact not required by the former prosecution and the law defining each offense is intended to prevent a substantially different harm or evil. People v. Allen, 944 P.2d 541 (Colo. App. 1996).

Effect of acquittal upon lesser included offense. It is the character of the evidence which must control in determining whether the lesser included offense of assault with intent to commit rape can stand alone or fall on acquittal of forcible rape. Miera v. People, 164 Colo. 254 , 434 P.2d 122 (1967).

Applied in People v. Williams, 651 P.2d 899 (Colo. 1982); People v. Garcia, 698 P.2d 801 (Colo. 1985).