PEOPLE v. GOODWIN

STERNBERG, Judge.

A jury found the defendant, Norman Dale Goodwin, guilty of second degree kidnapping. Within 10 years prior to this conviction Goodwin had pled guilty to one previous felony and nolo contendere to a second. Consequently the trial court sentenced him to a term not less than 18 nor more than 25 years under the habitual criminal statute. We affirm the conviction, but vacate the sentence and remand for resentencing for a term within the statutory limits for the kidnapping offense.

The relevant facts are these: A man accosted a woman in a parking lot, entered her car, forced her into the passenger's seat and drove off. When the woman struggled and screamed the man hit her several times but she was able to grab and turn the steering wheel causing the vehicle to swerve. As the man sought to regain control the woman opened the car door and despite the man's efforts to pull her back into the car by grabbing her clothing, hair, and earrings, she slid out and fell to the pavement. An onlooker ran to assist her as the man sped away.

I.

Goodwin's sole basis for seeking reversal of his kidnapping conviction is that the prosecution allegedly failed to comply with discovery procedure.

The perpetrator of the crime was described by witnesses as wearing a green army fatigue shirt buttoned to the collar. Defense counsel knew well in advance of trial that a prosecution witness would testify that he had seen Goodwin wearing a "long-sleeved shirt buttoned all the way up to the collar." However, for the first time on the morning of trial, counsel learned that the witness would describe the shirt that he had seen Goodwin wearing as being a green army fatigue shirt, and would also testify that Goodwin wore it frequently. Goodwin urges that the failure to disclose these specifics of the witness' testimony mandates reversal. We disagree.

Even if we accept Goodwin's premise that the failure of the prosecution to tell the further details of the witness' testimony concerning the type of shirt did not constitute full compliance with the discovery order, nevertheless, we find no prejudice to the defendant sufficient to warrant a new trial. See People v. Zallar, Colo., 553 P.2d 756 (1976); People v. Steed, Colo., 540 P.2d 323 (1975). Defense counsel had an adequate opportunity to interview this witness prior to trial, and the record reflects that he had indeed spoken with the witness. Significantly, when defense counsel was given the additional information about the witness' testimony he did not move to vacate the trial date to enable him to investigate the matter further. Under such circumstances, we decline to reverse this conviction based upon this single alleged failure to comply with the discovery order. See People v. Zallar, supra. We observe also that the record reflects considerable evidence other than this witness' testimony from which the jury could identify Goodwin as the assailant of the woman.

II.

Goodwin must, however, be resentenced. His attack on the enhanced sentence raises an issue of first impression in this state: May a court's acceptance of a plea of nolo contendere to a felony serve as a conviction for purposes of enhanced punishment under the habitual criminal statute? We hold that a judgment entered based upon a nolo contendere plea is not a "conviction" for the purposes of the habitual criminal statute.

Section 16-13-101(1), C.R.S.1973 (1976 Cum.Supp.), provides in pertinent part that:

Habitual criminal statutes do not create or define new or independent crimes, but rather are designed to prevent recidivism by prescribing circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous criminalities. Casias v. People, 148 Colo. 544, 367 P.2d 327 (1961); Wright v. People, 116 Colo. 306, 181 P.2d 447 (1947); 39 Am.Jur.2d Habitual Criminal §§ 2 and 6. A defendant may plead nolo contendere simply because for personal reasons he does not want to contest the issue of his guilt or innocence, see People ex rel. Attorney General v. Edison, 100 Colo. 574, 69 P.2d 246 (1937); Annot., 89 A.L.R.2d 540, and therefore defendant's judgment and sentence under it may not be indicative of the kind of criminal behavior the habitual criminal statute was designed to punish and prevent.

While a judgment on a nolo contendere plea is within the meaning of the word "conviction" in the context of impeachment of trial testimony, Lacey v. People, 166 Colo. 152, 442 P.2d 402 (1968), such interpretation is not universal. For instance, with respect to discipline of attorneys, People ex rel. v. Edison, supra, and with regard to qualifications for holding a liquor license, Bruce v. Leo, 129 Colo. 129, 267 P.2d 1014 (1954), a different interpretation has been applied. In those instances a nolo contendere plea was held not to be encompassed within the broad term "conviction" and a distinction between such plea and the guilty plea was made.

Because the habitual criminal statute is in derogation of common law, any doubts in construction must be resolved in a defendant's favor. See DeGesualdo v. People, 147 Colo. 426, 364 P.2d 374 (1961); Smalley v. People, 116 Colo. 598, 183 P.2d 558 (1947). Accordingly, absent specific language in the statute indicating that the General Assembly intended the habitual criminal statute to apply where one of the prior convictions is founded upon a nolo contendere plea, we hold that the acceptance of such a plea may not serve as a basis for the enhancement of punishment.

The judgment is affirmed, but the cause is remanded with directions that Goodwin be resentenced for conviction of the crime of second degree kidnapping.

COYTE and RULAND, JJ., concur.