May 22, 2018

Colorado Supreme Court: Court of Appeals Correctly Evaluated Unpreserved Double Jeopardy Claim for Plain Error

The Colorado Supreme Court issued its opinion in Zubiate v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In this case, the Colorado Supreme Court addressed (1) whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies, and (2) whether driving under revocation (DUR) is a lesser included offense of aggravated driving after revocation prohibited (aggravated DARP). In Reyna-Abarca v. People, 2017 CO 15, ¶¶ 2–3, ___ P.3d ___, also decided on February 27, the court (1) concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error and (2) clarified the applicable test to be employed in determining whether one offense is a lesser included offense of another.

Applying those rulings here, the court concluded that the division in Zubiate v. People, 2013 COA 69, ___ P.3d ___, correctly (1) conducted plain error review of Zubiate’s unpreserved double jeopardy claim, and (2) determined that DUR is not a lesser included offense of aggravated DARP, although the court’s analysis differs somewhat from that of the division. Accordingly, the court affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

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