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People v. Lucero5/13/1999
ct to the jury's verdict, we vacate defendant's convictions for vehicular homicide (reckless) and vehicular assault (reckless). See People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).
B.
This Conclusion renders moot defendant's additional contentions that his convictions for careless driving resulting in death and careless driving must merge with his convictions for vehicular homicide (reckless) or vehicular assault (reckless).
C.
Finally, we reject defendant's contention that his conviction for careless driving must merge with those for careless driving resulting in death.
Defendant was convicted of three counts of careless driving resulting in death. The careless driving violation, however, was based on injuries sustained by surviving victims. And, where the crimes have different victims, there is no merger. See People v. Rodriguez, 914 P.2d 230 (Colo. 1996).
VIII.
Last, although we disagree with defendant's contention that an amendment to his mittimus increased his sentence, we do remand for correction of other error.
The original mittimus required that the death-related sentences, which totaled six years, be consecutive to the remaining felony and misdemeanor convictions, which totaled three years. The misdemeanor convictions were to be served at the county jail. However, the sentencing court entered a specific notation which ordered that "the sentences to the county jail are to be served at DOC."
The court later amended the mittimus by deleting that provision. However, the total term of defendant's sentence remained nine years.
We conclude that the amendment simply changed the location where defendant was to serve two years of his total nine-year sentence from DOC to a county facility. However, this was error.
Defendant's two-year sentence for misdemeanor convictions was, and remains, time to be served concurrently with all other counts, excluding the counts involving the deaths. Those other counts include felonies. Hence, the entirety of defendant's total nine-year sentence must be served at DOC. See White v. Adamek, 907 P.2d 735 (Colo. App. 1995)(sentencing provision for adult felony offenders, §16-11-301(1), C.R.S. l998, requires that imprisonment for felony convictions be served by confinement in facility as determined by DOC).
Defendant's convictions for vehicular homicide (reckless) and vehicular assault (reckless) are vacated. The court's amendment to the mittimus requiring that defendant's sentences for misdemeanor convictions be served at the county jail is vacated. The remaining convictions are affirmed. The cause is remanded for correction of the mittimus in accordance with the views expressed in this opinion.
JUDGE NEY and JUDGE ROTHENBERG concur.
These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.
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