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People v. Paul8/14/2003
ORDER AFFIRMED
Ney and Webb, JJ., concur
Defendant, Kevin Paul, appeals the order denying his motion to dismiss the criminal charges against him. He asserts that the Double Jeopardy Clauses of the United States and Colorado Constitutions bar his retrial following the trial court's declaration of a mistrial. We disagree and therefore affirm.
The prosecution charged defendant with vehicular assault and driving under the influence . In violation of the discovery deadline imposed by the court, defense counsel did not produce an expert's report until shortly before trial. The prosecution filed a motion to strike, which the trial court initially denied.
During trial, the prosecution renewed its motion to strike when defense counsel called the expert to testify. The trial court then advised the parties that either they could ask for a continuance or request a mistrial. When the parties declined to exercise either option, the trial court declared a mistrial.
A second trial was scheduled to commence five months later. Defendant filed a motion to dismiss the charges, contending that principles of double jeopardy precluded a second trial. The trial court denied the motion, and this appeal followed.
I.
We first address our jurisdiction to determine the issues presented. Defendant contends that we have jurisdiction to hear this appeal because a pretrial order denying a motion to dismiss on double jeopardy grounds is a decision that is immediately appealable. The People assert that the trial court's determination is not a final judgment. We agree with defendant.
With exceptions not relevant here, an entire case or controversy generally must be resolved by a final judgment before an appeal can be pursued in this court. Section 13-4-102(1), C.R.S. 2002; Mission Viejo Co. v. Willows Water Dist., 818 P.2d 254 (Colo. 1991). Defendant argues, however, that under County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977), and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), an exception exists for an order that rejects a double jeopardy claim. We agree.
In Abney, the Supreme Court held that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds fell under the collateral order exception to the final judgment rule. Under that exception, a prejudgment order issued during lower court proceedings may be appealed as a final decision if the order "`conclusively determine the disputed question,' `resolve an important issue completely separate from the merits of the action,' and ` effectively unreviewable on appeal from a final judgment.'" Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985)(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)). The Court noted that the rights conferred on an accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence, because that clause protects an individual against being twice put to trial, not just against double punishment.
In County Court v. Ruth, supra, the supreme court quoted Abney with approval, stating that the considerations noted in Abney made the denial of a motion to dismiss for failure to comply with the criminal joinder statute an appealable decision.
The People assert that Ruth did not involve a pretrial order denying a motion to dismiss on double jeopardy grounds. While that observation is correct, because the Ruth court extensively relied upon Abney, which was a double jeopardy case,
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