However, when, as here, the issue involves amendment of the information on remand following a successful appeal, due process rights are implicated. See People v. Williams, 916 P.2d 624, 626–27 (Colo.App.1996). Hence, we will review the issue as a mixed question of fact and law, giving deference to the trial court's factual findings as long as they are supported by the record, and reviewing the court's legal conclusions de novo.

The modification of the once strong presumption of vindictiveness established by Pearce is reflected in the decisions of courts in other jurisdictions. For example, in Colorado v. Williams, 916 P.2d 624 (Colo.Ct.App. 1996), after successfully appealing his conviction for second degree murder, the appellant received a new trial, in which he was additionally tried on five counts charging him with being an habitual criminal. Appellant argued a defendant's sentence following reconviction on remand could only be increased if "`based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.'"

On January 25, 1996, the CCA affirmed this conviction on direct appeal. People v. Williams, 916 P.2d 624 (Colo. App. 1996). On September 16, 1996, the Colorado Supreme Court denied Mr. Williams' petition for certiorari review.

The instruction was presented in language suggestive of a factual report. People v. Williams , 916 P.2d 624, 627-28 (Colo. App. 1996) (The court has a duty to "insure that its instructions are couched in neutral terms to avoid any implication that it regards certain facts to be established."). For example, rather than telling the jury that the caseworker perceived the parents as volatile and threatening, the court told the jury that "[b]oth parents became very escalated and uncooperative" with the caseworker, "as evidenced by cussing and pointing fingers aggressively at" her.

Colorado courts have addressed vindictive prosecution, or prosecutorial bad faith, but not in the context of a defendant's request for discovery based on allegations of vindictive prosecution. See Hampton v. Dist. Court, 199 Colo. 104, 605 P.2d 54 (1980) (defendant made prima facie claim of prosecutorial bad faith); People v. Williams, 916 P.2d 624 (Colo.App. 1996) (prosecutor's decision to file habitual criminal counts at second trial was not prosecutorial vindictiveness); People v. Talley, 677 P.2d 394 (Colo.App. 1983) (defendant did not allege prima facie claim of prosecutorial bad faith); Clary v. County Court, 651 P.2d 908, 909-10 (Colo.App. 1982) (based on defendant's allegations of prosecutorial vindictiveness, he was allowed to call the prosecuting attorney as a witness to prove such allegations). Based on federal cases, we conclude that a trial court's denial of discovery on a claim of vindictive prosecution should be reviewed for abuse of discretion.

The prosecution nevertheless contends that the habitual criminal statute permits the late filing of habitual criminal counts under certain circumstances and cites Smith v. People, 872 P.2d 685 (Colo. 1994), and People v. Williams, 916 P.2d 624 (Colo.App. 1996), for this proposition. However, these cases are distinguishable.

No appellate court shall review any sentence which is imposed unless, within forty-five days from the date of the imposition of sentence, a written notice is filed in the trial court to the effect that review of the sentence will be sought; said notice must state the grounds upon which it is based. See People v. Williams, 916 P.2d 624 (Colo.App. 1996) (§ 18-1-409 sets time limitation for appellate court's review of defendant's sentence). Here, because defendant was sentenced on March 8, 2000, he had until April 22, 2000, to appeal the court's sentencing decision.

See North Carolina v. Pearce, 395 U.S. 711.See People v. Williams (Colo.App. 1996), 916 P.2d 624.See Lodi v. McMasters (1986), 31 Ohio App.3d 275, 277, 511 N.E.2d 123, citing Texas v. McCollough (1986), 475 U.S. 134, 106 S.Ct. 976, and Colten v. Kentucky (1972), 407 U.S. 104, 92 S.Ct. 1953.

granted Aug. 28, 2000); or when it otherwise intimates to the jury that it regards certain facts to be established. See People v. Williams, 916 P.2d 624, 627-28 (Colo.App. 1996). A trial court does not, however, invade the province of the jury when it instructs the jury in neutral terms on points of law.People v. Williams, supra.

granted Aug. 28, 2000); or when it otherwise intimates to the jury that it regards certain facts to be established.See People v. Williams, 916 P.2d 624, 627-28 (Colo.App. 1996). A trial court does not, however, invade the province of the jury when it instructs the jury in neutral terms on points of law.