United States v. Frank Steve Brzoticky

588 F.2d 773, 1978 U.S. App. LEXIS 7457

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 27, 1978
• Docket: 77-1872
• Status: Published

Opinions

SETH, Chief Judge.

The United States has taken this appeal from the dismissal of an indictment against the defendant. The charge was under 18 U.S.C. § 922 for receiving a firearm after having been convicted of a felony, and for giving false information at the time of the purchase of the firearm as to prior convictions. The trial court granted a motion of the defendant which asked for dismissal on the ground that defendant had no prior conviction.

The ruling on the motion was a determination that the nolo contendere plea entered by the defendant in a Colorado court in 1966 to a charge of larceny of an automobile was not a previous conviction as contemplated in 18 U.S.C. § 922. The Colorado charge was of a crime punishable by imprisonment for more than one year, and upon the nolo plea the Colorado court found the defendant guilty and gave a suspended sentence of three to five years.

Thus the issue is whether the Colorado proceedings constituted a “conviction in any court” as the term is used in 18 . We will look to the laws and decisions of Colorado and use the characterization of the proceedings by the state to determine whether there was a “conviction” of the defendant of the larceny charge. We apply the Colorado law pursuant to our decision in United States v. Stober, 588 F.2d 768 (10th Cir.), just decided by this court.

Nolo contendere, in Colorado and elsewhere, is a response to the request for a guilty or not guilty plea, but does not meet the issue, and instead only says that the defendant will not contest the charge. The Colorado courts have considered the consequences of a nolo response in People ex rel. Atty. Gen. v. Edison, 100 Colo. 574, 69 P.2d 246; Bruce v. Leo, 129 Colo. 129, 267 P.2d 1014; Lacey v. People, 166 Colo. 152, 442 P.2d 402; and Reynolds v. People, 471 P.2d 417 (Colo.). In the two earlier cases the court stated that the nolo “plea” would have no consequences beyond the particular proceeding. In People v. Edison there were several factors considered by the court which it felt induced the plea. In Bruce v. Leo the court considered the suspension of a liquor license where the licensees had entered nolo pleas to charges of selling to minors. The court had accepted the nolo, fined them fifty dollars, and ordered that “the ease be removed from the docket.” The supreme court held, in reliance on Edison, that the plea could not be used in any collateral matter.

In Lacey v. People, 166 Colo. 152, 442 P.2d 402, Justice McWilliams for the Supreme Court of Colorado stated, in referring to the consequence of a nolo plea:

“In other words, following sentence a person is convicted upon either a plea of guilty or a plea of nolo contendere, even though there admittedly are differences in general purpose of each of these two pleas.”

The court there referred to the Edison case, indicated that it was not on the precise question, and stated they chose to follow the better rule that a conviction on a nolo plea could be used to impeach the witness.

Lacey was followed in Reynolds v. People, 172 Colo. 137, 471 P.2d 417, wherein the court said Lacey had disposed of the argument that the plea was an admission of guilt only for the case in which it was entered. '

From the consideration of the Colorado cases it must be concluded that the nolo plea in Colorado is there considered to now have application beyond the original case. Thus with the judgment entered thereon there is a determination of guilt, and is a “conviction.” This is sufficient to meet the “conviction in any court” requirement of 18 U.S.C. § 922.’

As to the expungement-issue, the defendant thus had a previous conviction in the Colorado state court, and that conviction was extant when the question was answered as to convictions when the firearm was purchased, and when defendant received the firearm he came within the prohibition of 18 U.S.C. § 922. The ex-pungement, which took place after the charges herein considered were filed, did not change the situation as it existed when the incidents took place, upon which the charge was based.

The judgment of dismissal by the trial court is set aside and the indictment is reinstated. The case is REMANDED to the trial court for further proceedings.