Opinion
No. 85SA3
Decided April 21, 1986.
Appeal from the District Court of Adams County Honorable Oyer Leary, Judge
James F. Smith, District Attorney, Steven L. Bernard, Chief Trial Deputy, Michael J. Milne, Deputy District Attorney, for Plaintiff-Appellant.
No appearance for Defendant-Appellee.
EN BANC
The People appeal under section 16-12-102, 8 C.R.S.(1978), an order of the Adams County District Court dismissing a charge of crime of violence under section 16-11-309, 8 C.R.S. (1985 Supp.), brought in conjunction with a charge of first degree sexual assault with a deadly weapon, § 18-3-402(2)(c), 8 C.R.S. (1978). The district court dismissed the violent crime charge on the grounds that imposition of an aggravated sentence under section 16-11-309 would constitute double jeopardy and would deny equal protection to a defendant convicted of first degree sexual assault with a deadly weapon. The case proceeded to trial on the sexual assault count and the jury returned a verdict of not guilty.
The issue raised by the People is whether the provisions of the violent crime statute constitutionally may be applied to a defendant convicted of first degree sexual assault. In People v. Haymaker, 716 P.2d 110 (Colo. 1986), we determined that although the use of a deadly weapon raises first degree sexual assault from a class 3 to a class 2 felony under section 18-3-402(2)(c), basing a conviction of a crime of violence and a sentence in the aggravated range for a class 2 felony on the same factor does not violate state and federal constitutional guarantees of equal protection and due process or prohibitions against double jeopardy. See also People v. Powell, 716 P.2d 1096 (Colo. 1986).
The district court's ruling dismissing the crime of violence charge is inconsistent with Haymaker. Therefore, we disapprove the ruling of the district court.