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People v. Diaz

Court of Appeals of Colorado, First Division

September 27, 2012

The People of the State of Colorado, Plaintiff-Appellee,
v.
Joseph Phillip Diaz, Defendant-Appellant

As Amended May 7, 2015.

Page 298

Fremont County District Court No. 09CR332. Honorable Julie G. Marshall, Judge.

John W. Suthers, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Kathy Goudy, Carbondale, Colorado, for Defendant-Appellant.

Opinion by JUDGE J. JONES. Taubman, J., concurs, Russel, J., dissents.

OPINION

Page 299

J. JONES, JUDGE.

[¶1] Defendant, Joseph Phillip Diaz, appeals the sentence entered on a jury verdict finding him guilty of second degree assault. We vacate the sentence and remand the case to the district court for resentencing.

I. Background

[¶2] On August 11, 2009, defendant punched a prison guard in the eye while serving a sentence on other charges (the first assault). On September 29, 2009, the People charged defendant with second degree assault of a detention center employee, see § 18-3-203(1)(f), C.R.S. 2011, arising fro that incident.

[¶3] On October 22, 2009, defendant, while still serving a sentence on charges predating the first assault, threw a cup that hit a guard in the mouth (the second assault). The People then charged defendant in a separate case with second degree assault of a detention center employee for that incident.

[¶4] Before trial in either of the assault cases, defendant finished serving the sentence he had been serving when he committed the assaults.

[¶5] For reasons that the record does not make clear, the case involving the second assault was tried first. A jury found defendant guilty of the second assault. The court sentenced defendant to ten years in the custody of the Department of Corrections for that assault. The next day, a jury found defendant guilty of the first assault. The court imposed a sentence of ten years in prison for that conviction and, purporting to apply § 18-3-203(1)(f), ordered that sentence to be served consecutively to the sentence previously imposed for the second assault. This appeal concerns the sentence imposed for the first assault.

II. Discussion

[¶6] On appeal, defendant contends that the district court erred by ruling that section 18-3-203(1)(f) requires that the sentence for the first assault be served consecutively to the ...


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