Opinion
No. 27979
Decided July 3, 1978.
Defendant was convicted of the crime of theft by receiving. Thereafter, due to a holding that a portion of the statute was unconstitutional, defendant's motion for a new trial was granted, but the case was dismissed prior to retrial on ground that defendant's right to a speedy trial had been violated.
Reversed
1. TRIAL — Mistrial — Definition. A mistrial is an erroneous, invalid, or nugatory trial; it is a trial of an action which cannot stand in law because of want of jurisdiction, or a wrong drawing of jurors, or disregard of some other fundamental principle.
2. NEW TRIAL — Definition. A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court.
3. TRIAL — Mistrial — New Trial — Unlike. A mistrial and a new trial are unlike in both name and effect. A mistrial is equivalent to no trial; it is a nugatory trial. A new trial recognizes a completed trial which for sufficient reasons has been set aside so that the issues may be tried de novo.
4. NEW TRIAL — Mistrial — Verdict — Trial Complete — Appellate Review — Order. Prior to the entry of a verdict by a jury, a mistrial is procedurally correct; but once a verdict has been rendered, the trial is complete for purposes of appellate review, and a new trial motion can only result in the entry of an order for a new trial.
5. Motion — Initial Step — Appellate Process. A motion for new trial, although filed in the trial court, is the initial step in the appellate process.
6. Order — Reversal on Appeal — Similar — Speedy Trial — Six-Month — Rule — Statute. A new trial order pursuant to a new trial motion is similar to a reversal on appeal for purposes of the speedy trial provisions and results in a six-month speedy trial period within the purview of Crim. P. 48(b)(2) and section 18-1-405(2), C.R.S. 1973.
Appeal from the District Court of Jefferson County, Honorable Ronald J. Hardesty, Judge.
Nolan L. Brown, District Attorney, John R. Barksdale, Deputy, for plaintiff-appellant.
Brownstein, Hyatt, Farber Madden, Mark F. Leonard, Richard S. Bayer, for defendant-appellee.
On May 12, 1977, the defendant, Jon R. Jamerson, was convicted by a jury of theft by receiving. Shortly thereafter, on May 16, 1977, we held a portion of the theft by receiving statute unconstitutional in People v. Johnson, 193 Colo. 199, 564 P.2d 116 (1977). On June 27, 1977, the trial court, on the basis of our decision in People v. Johnson, supra, granted the defendant's motion for a new trial. The case was dismissed prior to retrial on December 20, 1977, on the ground that the defendant's right to a speedy trial had been violated, since he had not been brought to trial within three months of the new trial order, pursuant to Crim. P. 48(b)(6)(V) and section 18-1-405(6)(e), C.R.S. 1973. We reverse and remand for a new trial.
Section 18-4-410, C.R.S. 1973 (1977 Supp.).
The prosecution contends on appeal that a new trial order granted after trial and pursuant to a motion for new trial is equivalent to a reversal on appeal for speedy trial purposes. The trial court's characterization of its decision as a mistrial, therefore, is asserted to constitute error. We agree.
[1-3] Neither Colorado's speedy trial statute, section 18-1-405, C.R.S. 1973, nor our dismissal rule, Crim. P. 48, distinguishes mistrials from new trials. Black's Law Dictionary (rev. 4th ed. 1968), provides the following definitions:
"MISTRIAL. An erroneous, invalid, or nugatory trial; a trial of an action which cannot stand in law because of want of jurisdiction, or a wrong drawing of jurors, or disregard of some other fundamental principle." (Citations omitted.)
"TRIAL. New trial. A re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees. . . . A re-examination of the issue in the same court, before another jury, after a verdict has been given. . . . A re-examination in the same court of an issue of fact, or some part or portions thereof, after the verdict by a jury, report of a referee, or a decision by the court." (Citation omitted.)
Similarly, the court in In re Estate of Bartholomae, 261 Cal. App.2d 839, 68 Cal. Rptr. 332 (1968), declared:
"A mistrial and a new trial are unlike in both name and effect. A mistrial is equivalent to no trial; it is a nugatory trial. A new trial recognizes a completed trial which for sufficient reasons has been set aside so that the issues may be tried de novo. . . ."
[4,5] We approve of the foregoing definitions and statements. The crucial consideration in applying these principles to a jury trial is whether a verdict has been rendered after the trial is concluded. Prior to the entry of a verdict by a jury, a mistrial is procedurally correct. But once a verdict has been entered, the trial is complete for purposes of appellate review, and a new trial motion can only result in the entry of an order for a new trial. A motion for new trial, although filed in the trial court, is the initial step in the appellate process.
[6] We hold, therefore, that a new trial order pursuant to a new trial motion is similar to a reversal on appeal for purposes of our speedy trial provisions and results in a six-month speedy trial period. Crim. P. 48(b)(2); section 18-1-405(2), C.R.S. 1973.
Accordingly, the judgment of dismissal is reversed, and the cause is remanded for a new trial.
MR. JUSTICE HODGES does not participate.