Opinion
No. C-172
Decided September 18, 1972.
Certiorari to Superior Court to review defendant's conviction of reckless driving and drag racing.
Certiorari Dismissed
1. CERTIORARI — Reckless Driving — Drag Racing — Factual — Dismissal. Where defendant's conviction of reckless driving and drag racing necessarily involved only a factual issue, certiorari granted to review such conviction would be dismissed as having been improvidently granted.
2. COURTS — Municipal — Rule — Right of Allocution — Failure to Comply — Reckless Driving — Drag Racing — Remand for Resentencing. Where trial judge failed to comply with Municipal Court Rule 232(a) affording defendant the right of allocution before imposing sentence for reckless driving and drag racing, the case would be remanded for resentencing.
3. CRIMINAL LAW — Allocution — Mandatory — Municipal Court Rule. The wording of Municipal Court Rule 232(a) affording defendants the right of allocution before sentences is imposed is mandatory and this right should be granted to a defendant in every case.
Certiorari to the Superior Court of the City and County of Denver, Honorable Charles E. Bennett, Judge.
Humphrey and Wood, Carl E. K. Johnson, William R. Humphrey, for petitioner.
Max P. Zall, City Attorney, Sidney Biderman, Assistant, for respondent.
[1] Certiorari is dismissed as having been improvidently granted to review the defendant's conviction of reckless driving and drag racing, which in this case necessarily involves only a factual issue.
[2] We resolve the remaining issue on certiorari by remand to the trial court. The trial judge failed to comply with Colorado Municipal Court Rule 232(a), and the defendant must, therefore, be resentenced after being afforded the right of allocution that is required under the rule. Colorado Municipal Court Rule 232(a) provides as follows:
"(a) Sentence. Sentence shall be imposed without unreasonable delay. Pending sentence, the court may commit the defendant or may continue or alter the bail. Before imposing sentence the court may direct a pre-sentence investigation by a probation officer and a report filed thereby. The court shall, before imposing sentence, afford the defendant an opportunity to be heard on any matter material to the imposition of sentence." [Emphasis added.]
[3] The wording of the rule is mandatory, and the right should be granted to a defendant in every case.