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People v. Stewart9/9/2002
lusion, the court of appeals relied on our opinion in People v. Dillon, 655 P.2d 841 (Colo. 1982). In Dillon, we stated that "once an appeal has been perfected, the trial court has no jurisdiction to issue further orders in the case relative to the order or judgment appealed from" unless a statute or rule provided an exception. Id. at 844. The court of appeals reasoned that, by implication, our holding in Dillon meant that a trial court retains jurisdiction over matters that are not relative to, or do not affect, the order or judgment on appeal.
The court of appeals' judgment below was consistent with an opinion by a division of that court in People v. Widhalm, 991 P.2d 291 (Colo. Ct. App. 1999), holding that a trial court retained jurisdiction to revoke probation where a direct appeal was pending. However, the decision conflicted with an opinion issued by a different division of the court of appeals in People v. Kyu Ho Yi, 741 P.2d 1264, 1265 (Colo. Ct. App. 1987). In Kyu Ho Yi, the court of appeals determined that a remand to the trial court is necessary before an appeal bond can be granted. In light of this split of authority, we granted certiorari.
Section 16-4-201, 6 C.R.S. (1999), authorizes an appeal bond, except in capital cases. The statute contemplates that, at least initially, a request for an appeal bond will be made in the trial court; C.A.R. 9(b) contains a similar provision. Thus, as the court of appeals noted in this case, " t is apparent from both the rule and statute that a motion for an appeal bond may be filed and acted upon prior to the commencement of the appeal." An ambiguity arises, it observed, as to the effect that filing an appeal bond has on the status of a trial court's jurisdiction over appeal bonds.
We agree with the court of appeals' analysis and disposition of the issue. A trial court retains jurisdiction to act on matters that are not relative to and do not affect the judgment on appeal. Dillon, 655 P.2d at 844; Molitor v. Anderson, 795 P.2d 266 (Colo. 1991). Accordingly, we hold that no limited remand was necessary for the trial court to consider Stewart's application for an appeal bond after he filed a direct appeal. Therefore, we affirm the court of appeals' judgment with respect to this issue.
III. Conclusion
In sum, we hold that the second degree reckless assault statute and the vehicular assault statute proscribe different conduct. Therefore, we conclude that they do not violate Stewart's right to equal protection under the law. We also conclude that the trial court did not commit plain error in failing to instruct the jury that "intervening cause" constituted an affirmative defense to second degree reckless assault. Additionally, we determine that the trial court abused its discretion in permitting an investigating officer to testify as an expert witness without complying with the strictures of Colo. R. Evid. 702; however, we conclude that the error was harmless. Finally, we hold that a limited remand to the trial court was not necessary for that court to consider the defendant's request for an appeal bond. Accordingly, we reverse the court of appeals' judgment in part and affirm it in part.
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