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PEOPLE v. KENNAUGH

No. 03SA013.

80 P.3d 315 (2003)

In re the PEOPLE of the State of Colorado, Plaintiff, v. James Keith KENNAUGH, Defendant.

Supreme Court of Colorado.

December 8, 2003.

Attorney(s) appearing for the Case

David J. Thomas, District Attorney, Donna Skinner Reed, Chief Appellate District Attorney, Golden, Colorado, Attorneys for Plaintiff.

Jean E. Dubofsky, Boulder, Colorado, Richilano & Ridley, P.C., Patrick L. Ridley, Denver, Colorado, Burke & Neuwirth, P.C., Dean Neuwirth, Denver, Colorado, Attorneys for Defendant.

David S. Kaplan, Colorado, Public Defender Andrea Manning, Assistant Public Defender, Denver, Colorado, Attorneys for Amicus Curiae Colorado Public Defender.

Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Amicus Curiae Attorney General.

Peter A. Weir, Executive Director, Miles Madorin, Staff Attorney, Denver, Colorado, Attorneys for Amicus Curiae Colorado District Attorneys' Council.

Justice RICE delivered the Opinion of the Court.

In this proceeding under C.A.R. 21, we address whether the probationary sentence for a misdemeanor may ever exceed the statutory maximum incarceration sentence for that same misdemeanor. The trial court below terminated the defendant's probation based on People v. Benavidez, 58 P.3d 1142 (Colo.App.2002). In Benavidez, the court of

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