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People v. Bovard11/20/2003
case based on the record developed below, as opposed to a trial de novo, it acts as a reviewing court and must accept the facts as found by the county court, and its review is limited to the sufficiency of the evidence); People v. Anderson, 177 Colo. 84, 492 P.2d 844 (1972).
Thus, in my view, when § 13-4-102(1) excludes from the jurisdiction of the court of appeals cases appealed from the county court to the district court as provided in § 13-6-310, the exclusion applies only to those cases in which the district court acts as a court of review or an appellate court. To interpret the statute otherwise would torture the meaning of "appeal" to include a trial de novo.
My conclusion is further supported by reference to Crim. P. 37(h) and § 16-12-101, C.R.S. 2003.
Crim. P. 37(h) provides in pertinent part:
Unless there is further review by the Supreme Court upon writ of certiorari pursuant to the rules of such court, after final disposition of the appeal the judgment on appeal entered by the district court shall be certified to the county court for action as directed by the district court, except in cases tried de novo by the district court . . . and in such cases, the judgment on appeal shall be that of the district court and so enforceable.
In my view, this means that when a case is appealed from county court to district court, and there is a trial de novo in the district court, "the judgment on appeal shall be that of the district court and so enforceable." It follows that if, after a trial de novo, the judgment is that of the district court, that judgment should be appealable under the same procedure for appeals from other district court judgments.
Further, § 16-12-101 provides that every person convicted of a crime under Colorado law has the right of appeal to "review the proceedings resulting in conviction" (emphasis added). When a district court conducts a trial de novo, however, it does not "review the proceedings resulting in conviction." See People v. Hampton, 876 P.2d 1236, 1241 (Colo. 1994)("a convicted defendant has the right to appeal his conviction" under § 16-12-101); People v. Davis, 759 P.2d 742, 746 (Colo. App. 1988)(" s a matter of right, every person convicted of a crime is entitled to one appeal"). Here, under the majority's decision, defendant's conviction will not be reviewed on the merits by the court of appeals, as contemplated by § 16-12-101, and his chances for review on the merits are limited if he files a petition for certiorari with the supreme court.
Accordingly, I would conclude that this court has subject matter jurisdiction pursuant to § 13-4-102(1) to consider defendant's appeal because it is from a final judgment of the district court entered after a trial de novo in that court. Further, I would address defendant's appeal on the merits.
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