Opinion
No. 78-616
Decided July 5, 1979.
Defendant escaped from custody while serving a sentence imposed after he pled nolo contendere to certain felony charges, and from his conviction on escape charge, he appealed.
Affirmed
1. CRIMINAL LAW — Nolo Contendere Plea — "Conviction" — For Purposes — Escape Classification Statute. A plea of nolo contendere to a felony charge constitutes a "conviction" for purposes of statute which classifies an escape as a class 3 felony if it occurs while the perpetrator is confined following his "conviction" of certain types of felony.
Appeal from the District Court of Jefferson County, Honorable Anthony F. Vollack, Judge.
Nolan L. Brown, District Attorney, Dan B. Fahrney, Chief Deputy District Attorney, Robert D. Kelly, Deputy District Attorney, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Arthur S. Nieto, Special Deputy State Public Defender.
Defendant escaped from custody while serving a sentence imposed after he pled nolo contendere to felony charges of first degree criminal trespass and second degree forgery. Thereafter defendant was apprehended and convicted of violating § 18-8-208(2), C.R.S. 1973. This statute, in effect at the time of his escape, provided as follows:
"A person commits a class 3 felony if, while being in custody or confinement under a sentence following conviction of a felony other than a class 1 or class 2 felony, he escapes from said custody or confinement."
Appealing his escape conviction, defendant contends here that he did not violate the provisions of § 18-8-208(2), C.R.S. 1973, because at the time of his escape he was not serving a sentence for a felony conviction. Defendant asserts, in effect, that a plea of nolo contendere does not constitute a conviction within the meaning of § 18-8-208(2), C.R.S. 1973. We disagree.
[1] Under the provisions of § 18-8-208, C.R.S. 1973, the seriousness of the crime of escape is determined by the classification of the original crime for which the defendant was in custody or confinement. People v. Bulmer, 37 Colo. App. 82, 544 P.2d 993 (1975). And the issue presented here is analogous to that presented in People v. Goodwin, 197 Colo. 47, 593 P.2d 326 (1979), wherein the Supreme Court held that a judgment entered upon a plea of nolo contendere is a "conviction" for purposes of applying the punishment enhancement provisions of the habitual criminal statute. We see no compelling reason for not applying the rationale of the Goodwin case to the issue presented here. See People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973).
Judgment affirmed.
JUDGE COYTE and JUDGE VAN CISE concur.