February 21, 2019

Colorado Supreme Court: In Double Jeopardy Realm, Merge of Multiplicitous Convictions Has Same Effect as Vacating All but One

The Colorado Supreme Court issued its opinion in People v. Wood on Tuesday, January 22, 2019.

Double Jeopardy—Multiplicitous Convictions—Sentencing and Punishment—Amendment and Correction.

The supreme court clarified that when a mittimus provides that multiplicitous convictions merge, a defendant is afforded the protection to which he or she is entitled under the double jeopardy clause just the same as when a mittimus indicates that all but one of the multiplicitous convictions are vacated. In the double jeopardy realm, the merger of multiplicitous convictions has the same effect as vacating all but one of them.

Here, defendant’s mittimus accurately documented the state district court’s decision to merge his two murder convictions and impose a single life sentence on the resulting merged conviction. But, in resolving defendant’s habeas corpus petition, the U.S. Court of Appeals for the Tenth Circuit misread the mittimus as containing two murder convictions for the same killing and found a double jeopardy defect. Merely because defendant’s mittimus merged the multiplicitous murder convictions, rather than expressly stating that one of them was vacated, does not mean that his double jeopardy rights were violated.

Even if the Tenth Circuit correctly understood the mittimus, any error was clerical in nature. Therefore, the proper remedy was to simply correct the mittimus pursuant to Rule 36 of the Colorado Rules of Criminal Procedure.

Because a division of the court of appeals assumed that the Tenth Circuit’s reading of the mittimus was accurate and then failed to recognize that any error in the mittimus was subject to correction under Rule 36, the court reversed the division’s judgment and vacated its opinion. However, given that the district court recently amended the mittimus to expressly state that one of the multiplicitous murder convictions was vacated, the court did not remand this matter.

Summary provided courtesy ofColorado Lawyer.

Hon. Joel M. Carson Appointed to Tenth Circuit Court of Appeals

On Friday, May 18, 2018, the Tenth Circuit Court of Appeals announced the appointment of Hon. Joel M. Carson to the Tenth Circuit. Judge Carson was nominated in December 2017, and his nomination was confirmed by the Senate on May 15, 2018. Prior to his appointment, Carson was a partner at Carson Ryan LLC in New Mexico, where he specialized in oil and gas law, regulatory issues, litigation, and appellate law. He was also a part-time magistrate judge for the District of New Mexico. He received his bachelor’s degree in finance from Texas Tech University and his law degree from the University of New Mexico. His chambers will be in Roswell, New Mexico.

For more information about the appointment, click here.