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People v. Bovard11/20/2003
APPEAL DISMISSED
Defendant, Robert M. Bovard, appeals the judgment of conviction entered on a jury verdict finding him guilty of driving under the influence of alcohol. We dismiss defendant's appeal for lack of subject matter jurisdiction.
Defendant was charged in county court with three traffic violations, including one count of driving under the influence of alcohol. The county court denied defendant's motion to suppress the results of his roadside sobriety tests, the breath test, and the officer's observations of defendant's physical characteristics. However, it suppressed statements defendant made at the scene.
The case was tried to a county court jury, and defendant was convicted of driving under the influence . The court and parties later determined that the tape-recorded record of the suppression hearing had been lost.
Defendant then appealed his conviction to the district court and challenged both the county court's denial of the motion to suppress and its refusal to conduct a new hearing on that motion to establish a record for appeal.
About three months after defendant filed his notice of appeal with the district court, he filed an unopposed motion for trial de novo, pursuant to Crim. P. 37(g), on the ground that the district court did not have an adequate record to review the issues on appeal. The district court granted defendant's motion.
After a trial, the district court jury found defendant guilty of driving under the influence of alcohol.
I.
Defendant argues that this court has jurisdiction to consider his appeal of the district court judgment because doing so will preserve his due process right of automatic review under § 16-12-101, C.R.S. 2003. We disagree.
The United States and Colorado Constitutions both prohibit the state from depriving any person of life, liberty, or property without due process of law. Consequently, the supreme court has held that appeals in criminal cases are a matter of right. See In re Griffin, 152 Colo. 347, 382 P.2d 202 (1963); In re Patterson, 136 Colo. 401, 317 P.2d 1041 (1957).
Section 16-12-101 provides: "Every person convicted of an offense under the statutes of this state has the right of appeal to review the proceedings resulting in conviction. The procedures to be followed in any such appeal shall be as provided by applicable rule of the supreme court of Colorado."
The applicable rule of the supreme court, Crim. P. 37(a), grants every defendant convicted in a county court the right to appeal the conviction to the district court of the county. Similarly, in § 13-6-310(1), C.R.S. 2003, the General Assembly has provided that appeals from final judgments of the county courts must be taken to the district court of the county.
With regard to the nature of the appeal, the supreme court has provided that, " f for any reason an adequate record cannot be certified to the district court the case shall be tried de novo in that court." Crim. P. 37(g). Similarly, although § 13-6-310(2), C.R.S. 2003, grants the district court authority to review the county court judgment on the record, it also grants the district court discretion to try the case de novo.
Section 13-6-310(4), C.R.S. 2003, states that, in county court cases that have been appealed to the district court, a defendant may further appeal a "determination of the district court . . . only upon a writ of certiorari issued in the discretion of the supreme court." Crim. P. 37(h), which addresses enforcement of judgments in such cases, is consistent with the statute. Although the rule provides that, when the district court disposes of an appeal
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