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People v. Wilson6/17/2004
(1)(b) clearly sets forth the elements of the crime of aggravated driving with a revoked license, which include six different offenses committed "as part of the same criminal episode." Thus, the aggravating offenses listed in § 42-2-206(1)(b) are essential elements of the crime.
As stated above, count one of the information did not contain an aggravating element, and, therefore, it was insufficient to charge defendant with the crime of aggravated driving with a revoked license.
Concerning retrial, the Double Jeopardy Clauses of the United States and Colorado Constitutions protect a defendant from successive prosecutions. Deutschendorf v. People, 920 P.2d 53 (Colo. 1996). The Supreme Court has long held that the People cannot prosecute a defendant successively for the same criminal act under different statutes unless each statute "requires proof of an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). Therefore, because aggravated driving with a revoked license was not charged in the information, defendant may not be tried for that felony without violating his right to be free from double jeopardy. However, defendant may be retried for the misdemeanor of driving without a license, as charged in the information. People v. Campbell, 885 P.2d 327 (Colo. App. 1994)(where reversal is predicated upon errors of law, remand for new trial does not violate double jeopardy).
Further, because driving under the influence is not a lesser included offense of driving without a license, if convicted after retrial, defendant may be separately sentenced for that count. See § 18-1-408(1)(a), C.R.S. 2003; Armintrout v. People, supra, 864 P.2d at 578-79.
Because we vacate the judgment and sentence, we do not address defendant's arguments regarding his sentence. We note, however, that the parties agree that defendant was erroneously sentenced to jail for his conviction of driving on the wrong side of the road, a traffic infraction that provides for a maximum penalty of a $100 fine, and that the same conviction was mistakenly entered on the mittimus as a speeding violation. If defendant is tried and convicted again, these errors are to be corrected on retrial.
Accordingly, the judgment and sentence are vacated, and the case is remanded for a new trial.
JUDGE DAILEY and JUDGE GRAHAM concur.
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