2021 Colorado Code
Title 18 - Criminal Code
Article 1 - Provisions Applicable to Offenses Generally
Part 3 - When Prosecution Barred by Former Proceedings
§ 18-1-303. Second Trial Barred by Prosecution in Another Jurisdiction

1. If conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States, or another state, or of a municipality, a prosecution in any other of these jurisdictions is a bar to a subsequent prosecution in this state under either of the following circumstances:
   1. The first prosecution resulted in a conviction or an acquittal as defined in section 18-1-301 (1)(a) and (1)(c), and the subsequent prosecution is based on the same conduct, unless:
      1. The offense for which the defendant was formerly convicted or acquitted requires proof of a fact not required by the offense for which he is subsequently prosecuted and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or
      2. 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 offense for which the defendant is subsequently prosecuted.

History. Source: L. 71: R&RE, p. 397, § 1. C.R.S. 1963: § 40-1-403 .

Dual sovereignty no longer viable in Colorado. In early cases the courts recognized the concept of dual sovereignty for the purposes of prosecution and punishment of an accused in both a state and municipal court for the same act. The concept of dual sovereignty is no longer viable in Colorado. People v. Horvat, 186 Colo. 202 , 527 P.2d 47 (1974).

Subsection (1)(a) specifically defines the capacity of the state to prosecute when there has been a previous prosecution in a municipality. People v. Talarico, 192 Colo. 445 , 560 P.2d 90 (1977).

Effect of previous prosecution in municipal court. 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).

Where defendant struck one man and also allegedly hit another man, and the assault on the first man resulted in the filing of charges for the violation of two municipal ordinances, to which the defendant pleaded guilty, and where the district attorney filed a felony complaint in the Denver county court and charged the defendant with first-degree assault and second-degree burglary, and the felony assault charge predicated on the acts which allegedly caused the injuries to the second man was dismissed by the county court judge, and the district attorney then filed a direct information in the district court, charging the defendant with first-degree assault, this section did not justify dismissal of the felony assault charge against the defendant. People v. Mendoza, 190 Colo. 519 , 549 P.2d 766 (1976).

Jeopardy does not attach when a charge is dismissed on grounds unrelated to a defendant's criminal liability. Where, prior to the commencement of trial, a federal charge was dismissed on the basis of a finding of incompetency to stand trial, jeopardy did not attach; consequently, state prosecution did not amount to “subsequent prosecution”. Chatfield v. Colo. Court of Appeals, 775 P.2d 1168 (Colo. 1989).

A complete defense to a subsequent state prosecution is provided by this section; it does not function to deprive a district court of jurisdiction over a defendant or a charged offense. Chatfield v. Colo. Court of Appeals, 775 P.2d 1168 (Colo. 1989).

Prosecution by Indian tribal court bars a subsequent Colorado prosecution where the requirements of this section are met. People v. Morgan, 785 P.2d 1294 (Colo. 1990).

Exception in this section for previously tried offenses which require proof of different facts than the subsequently tried offense does not include facts required to establish jurisdiction and venue or facts concerning the dates of the conduct. People v. Morgan, 785 P.2d 1294 (Colo. 1990).

Colorado's subsequent prosecution barred because it was based on the same conduct for which defendant was convicted in California. Colorado's prosecution for aggravated motor vehicle theft was based on same conduct as California conviction for unlawful taking of a vehicle, and the exception in (1)(a)(I) does not apply because California and Colorado statutes were intended to prevent substantially similar harm. People v. Giem, , 378 P.3d 809 .

While the California offense requires proof of a fact that the Colorado offense does not, the subsection (1)(a)(I) exception to the statutory bar applies only if both prongs of the exception are satisfied. Colorado could not show that the law defining the California offense and the law defining the Colorado offense were intended to prevent a substantially different harm or evil. People v. Giem, , 378 P.3d 809 .

Federal acquittal or conviction based on same conduct is a bar to state prosecution unless federal action requires proof of a fact not required by state offense. People v. Esch, 786 P.2d 462 (Colo. App. 1989).

Defendant's federal prosecution under the Racketeer Influenced and Corrupt Organizations Act (RICO) and subsequent state conviction for first degree murder for the same incident do not constitute double jeopardy. The RICO conviction required proof of facts not necessary for the state murder conviction, and the two laws seek to prohibit substantially different evils. People v. Gladney, 250 P.3d 762 (Colo. App. 2010).

Applied in People v. Hines, 194 Colo. 284 , 572 P.2d 467 (1977); Blum v. County Court, 631 P.2d 1191 (Colo. App. 1981); People v. Wentling, 2015 COA 172 , 409 P.3d 411.