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State v. Bernert9/16/2004
Defendant was initially charged by Ogden City (the City) with a class B misdemeanor DUI. At Defendant's arraignment, he indicated that he intended to plead guilty. Judge W. Brent West conducted a plea colloquy pursuant to rule 11 of the Utah Rules of Criminal Procedure and determined that Defendant understood the charges against him and that his plea was knowing and voluntary. Judge West then asked Defendant, "How do you plead?" Defendant responded, "I ple[a]d guilty, [y]our Honor." The court responded by asking, "Is there a breath or blood test?" The City replied that it did not have any test results, and Judge West asked, "Recommendation, Counsel?" At that point, the City, for the first time, informed the court that Defendant had a prior criminal history, including alcohol-related offenses.
**3 Judge West reviewed Defendant's Pretrial Service Program Own Recognizance Interview Sheet and stated, "So I'm kind of surprised that this isn't a class A or a felony but I show an extensive record." The City then asked the court not to accept Defendant's guilty plea so the City could transfer the case to county prosecutors, who could charge Defendant with a felony DUI. Judge West answered, "[Defendant has] already entered his plea. I don't know if the [C]ity can do that but I'm going to continue it over one day and think about it." The matter was brought the next day before Judge Parley R. Baldwin, and, without comment, he granted the City's request to dismiss the misdemeanor charge. Thereafter, the State charged Defendant with a third degree felony DUI, and Defendant filed a motion to dismiss the charge based upon double jeopardy.
**4 Defendant's motion to dismiss was heard by Judge Michael D. Lyon, who sent the case back to Judge West to "make his own judgment whether he accepted the plea o[r] not." At the proceeding before Judge West, Defendant pointed out that the court does not regularly make an express acceptance of a guilty plea, rather the court normally asks for a blood or breath test and any recommendations after taking the plea and in preparation for imposing sentence. Judge West reviewed the tape of Defendant's misdemeanor plea hearing and made findings consistent with those he had made initially. Although Judge West acknowledged that maybe he ought to reconsider the manner in which he accepts pleas and make his acceptance explicit, he nonetheless concluded that he did not accept Defendant's misdemeanor guilty plea. Based upon Judge West's determination that he had not accepted Defendant's plea, Judge Lyon, at a third hearing on Defendant's motion to dismiss, ruled that jeopardy had not attached and denied Defendant's motion to dismiss.
**5 On January 23, 2003, at a pretrial hearing before Judge Lyon, Defendant entered a conditional plea of guilty to the felony charge, specifically reserving the right to appeal the double jeopardy issue. Defendant was later sentenced to zero to five years at the Utah State Prison. Defendant appeals the trial court's denial of his motion to dismiss.
ISSUE AND STANDARD OF REVIEW
**6 The sole issue on appeal is whether the trial court erred in denying Defendant's motion to dismiss on the grounds of double jeopardy. "A trial court's decision to grant or deny a motion to dismiss presents a question of law, which we review for correctness." State v. Horrocks, 2001 UT App 4, 10, 17 P.3d 1145.
ANALYSIS
**7 Defendant argues that he could not properly be convicted of a felony DUI after he had previously pleaded guilty to a misdemeanor DUI arising out of the same criminal episode. Defendant contends that jeopardy attached when he pleaded guilty to *223 the misdemeanor and the court accepted that plea. The State, however, argues that the trial court did not err in denying Defendant's mo
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