As Amended May 7, 2015.
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.
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.
[¶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.
[¶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 ...