The Colorado Court of Appeals issued its opinion in People v. Diaz on September 27, 2012.
Assault—Consecutive Sentencing—CRS § 18-3-203(1)(f).
Defendant appealed the sentence entered on a jury verdict finding him guilty of second-degree assault. The sentence was vacated and the case was remanded to the district court for resentencing.
While serving a sentence on other charges, defendant punched a prison guard in the eye. On a second occasion, he threw a cup that hit a guard in the mouth. The second assault was tried first. Defendant was found guilty, and he was sentenced to ten years in the custody of the Department of Corrections. The next day, defendant was found guilty of the first assault, and he was sentenced to ten years in prison, to be served consecutively to the sentence imposed for the second assault.
On appeal, defendant contended that the district court erred by ruling that CRS § 18-3-203(1)(f) requires that the sentence for the first assault be served consecutively to the sentence for the second assault. CRS § 18-3- 203(1)(f) requires consecutive sentencing only when a defendant is serving a sentence (and not merely confined on unresolved charges) at the time of the assault. Therefore, the district court erred in ruling that the sentence for the first assault must run consecutively to the sentence for the second assault. Nonetheless, the court had discretion to order the sentence for the first assault to run consecutively to the sentence for the second assault. On remand, the court must exercise its discretion in determining whether the sentence for the first assault should be served consecutively to the sentence for the second assault.
Summary and full case available here.
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