Erickson v. City & County of Denver

500 P.2d 1183, 179 Colo. 412

Opinion

PER CURIAM

Certiorari is dismissed as having been improvidently granted to review the defendant’s conviction of reckless driving and drag racing, which in this case necessarily involves only a factual issue.

We resolve the remaining issue on certiorari by remand to the trial court. The trial judge failed to comply with Colorado Municipal Court Rule 232(a), and the defendant must, therefore, be resentenced after being afforded the right of allocution that is required under the rule. Colorado Municipal Court Rule 232(a) provides as follows:

“(a) Sentence. Sentence shall be imposed without unreasonable delay. Pending sentence, the court may commit the defendant or may continue or alter the bail. Before imposing sentence the court may direct a pre-sentence investigation by a probation officer and a report filed thereby. The court shall, before imposing sentence, afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment. The prosecution shall be given an opportunity to be heard on any matter material to the imposition of sentence.” [Emphasis added.]

The wording of the rule is mandatory, and the right should be granted to a defendant in every case.