A BRIEF FROM A MEMORANDUM DISTINGUISHED

BRIEF A complete statement of facts of the case

Appellants brief: contents 1. 2. 3. Title of the case Crime charged Material datesto find out if appeal was made within reglementary period a. b. 4. 5. 6. 7. When copy of judgment is received When appeal was made

Facts upon which judgment was based Decision being appealed from

Arguments in support of appeal Prayer

Appellees brief: counterstatement of facts

MEMORANDUM Summary that the party would make at the last minute; lays down the principles and authorities

Sometimes a case is won through a memorandum

Disadvantage in the appellate courtcannot Observe the demeanor of the witness Findings of fact of the trial court are given greater weight Usually the appellate court sustains the trial court Counsel of the appellant must highlight the error

A motion is an application to the court for relief. A brief is the legal argument in support of a motion or an appeal, and the term normally used in appellate practice. A pleading refers to the complaint or answer in the case. The memo of law is the legal argument with cases/statutes as applicable offered in support of the motion

APPEAL TO THE REGIONAL TRIAL COURTS

Details Category: Criminal Procedure

Sec. 9. Appeal to the Regional Trial Courts. (a) Within five (5) days from perfection of the appeal, the clerk of court shall transmit the original record to the appropriate Regional Trial Court.

(b) Upon receipt of the complete record of the case, transcripts and exhibits, the clerk of court of the Regional Trial Court shall notify the parties of such fact.

(c) Within fifteen (15) days from receipt of said notice, the parties may submit memoranda or briefs, or may be required by the Regional Trial Court to do so. After the submission of such memoranda or briefs, or upon the expiration of the period to file the same, the Regional Trial Court shall decide the case on the basis of the entire record of the case and of such memoranda or briefs as may have been filed.

WHEN APPEAL TO BE TAKEN; FRESH PERIOD RULE Details Category: Criminal Procedure Sec. 6. When appeal to be taken. An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his counsel at which time the balance of the period begins to run.

NOTE:

The period of appeal seems to have been amended by the SC ruling in Domingo Neypes v. CA, GR

141524, September 14, 2005.

To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.

Henceforth, this fresh period rule shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies[31] to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court.[32] The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.

Although the SC has made this ruling on a civil case, it is submitted that such if the Court has applied this rule to all other appeals involving civil cases, with more reason should the defendant in a criminal case be given ample time to file his appeal.

WHEN IS APPEAL PERFECTED? or through their attorney filed with the clerk of court a written notice expressly stating the appeal

WHAT IS THE EFFECT OF PERFECTION OF AN APPEAL?

WHAT IS THE DIFFERENCE BETWEEN THE APPEAL OF A JUDGMENT AND THE APPEAL OF AN ORDER?

HOW IS APPEAL TAKEN?

Details Category: Criminal Procedure Sec. 3. How appeal taken. (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of

appeal with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. (c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua, or lifeimprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance with paragraph (a) of this section. (d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial Court. The same shall be automatically reviewed by the Supreme Court as provided in section 10 of this Rule. Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45.

APPEAL- WHO MAY APPEAL; WHERE TO APPEAL RULE 122 - APPEAL

DetailsCategory: Criminal Procedure

Section 1. Who may appeal. Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy. IS APPEAL PART OF DUE PROCESS? en provided by law n accordance with the procedure laid down by law. It is compellable by mandamus. Sec. 2. Where to appeal. The appeal may be taken as follows: (a) To the Regional Trial Court, in cases decided by the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court; (b) To the Court of Appeals or to the Supreme Court in the proper cases provided by law, in cases decided by the Regional Trial Court; and (c) To the Supreme Court, in cases decided by the Court of Appeals. WHERE DOES ONE FILE AN APPEAL? decided by the MTCs, the appeal should be made with the RTC law e SC CAN THE PROSECUTION APPEAL A JUDGMENT OF ACQUITTAL?

double jeopardy. However, the offended party may appeal the civil aspect of the case.

in double jeopardy. THAT THE ONLY THING THAT COULD BE APPEALED IS THE CIVIL ASPECT. EFFECTS OF GRANTING A NEW TRIAL OR RECONSIDERATION Details Category: Criminal Procedure Sec. 6. Effects of granting a new trial or reconsideration. The effects of granting a new trial or reconsideration are the following: (a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. (b) When a new trial is granted on the ground of newly-discovered evidence, the evidence already adduced shall stand and the newly-discovered and such other evidence as the court may, in the interest of justice, allow to be introduced shall be taken and considered together with the evidence already in the record. (c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly. WHAT IS THE EFFECT OF THE GRANT OF THE MOTION FOR NEW TRIAL? THE GRANT OF THE MOTION HAS THE FOLLOWING EFFECTS: 1. If it is based on errors of law or irregularities committed during the trial, a trial de novo ensues. This means that all the proceedings and evidence affected by the error or irregularity will be set aside. The court may, in the interest of justice, allow the introduction of additional evidence. 2. If it is based on the ground of newly discovered evidence, the evidence already adduced will stand. The newly discovered evidence and whatever other evidence the court will allow to be introduced shall be taken and considered together with the evidence already on record 3. In all caseswhether the court grants new trial or reconsiderationthe original judgment shall be set aside or vacated and a new judgment rendered WHY IS THE ACCUSED NOT SUBJECTED TO DOUBLE JEOPARDY WHEN A NEW TRIAL OR RECONSIDERATION IS GRANTED? upon motion of the accused one

Sec. 5. Hearing on motion. Where a motion for new trial calls for resolution of any question of fact, the court may hear evidence thereon by affidavits or otherwise.

========================================== Online Companion: Legal Research, Analysis, and Writing

Chapter 18

CHAPTER 18 SUMMARY
The preparation of documents involving legal analysis that are designed to be submitted to a court is the focus of this chapter. Such a document, usually called a court brief, is often formally referred to as a memorandum of law or a memorandum of points and authorities. The chapter presents an overview of the major considerations, key points, and guidelines involved in the preparation of court briefs that may prove helpful to a paralegal or law clerk. At the trial court level, these documents are legal memorandum briefs submitted in support of a legal position advocated by an attorney. They are usually submitted in conjunction with a motion that requests some action or relief by the trial court. At the appellate court level, the documents submitted to an appellate court that involve legal

analysis are the appellate court briefs. Office legal memoranda and court briefs are similar in many respects. When preparing both office memoranda and court briefs, it is helpful to use a writing process such as that suggested in Chapter 15. Office memoranda and court briefs follow a similar format: presentation of the issue, facts, analysis, and conclusion. The major difference between an office memorandum and a court brief is the orientation of the presentation. An office memorandum is designed to inform and is written in an objective manner. A court brief is designed to advocate a position and persuade the court; therefore, the issue(s), facts, and legal argument are crafted in a persuasive manner designed to convince the court to adopt the position advocated. The DissimilaritiesCourt Briefs and Office Memoranda subsection of this chapter discusses the techniques for drafting a persuasive court brief. A trial court brief is a memorandum of law submitted by an attorney to a trial court. In the memorandum, the attorney introduces the legal authority and analysis that supports a position advocated by the attorney. An appellate court brief is the written legal argument submitted to a court of appeals. In the appellate brief, an attorney presents the legal authority and analysis in support of or opposition to an argument that a lower court committed reversible error. Trial and appellate court briefs are similar in many respects. A major difference is that appellate court briefs are usually more formal: the style and format are more strictly governed by the appellate court rules. Both trial and appellate court briefs, however, are governed to some degree by court rules, and these rules must be carefully reviewed when preparing a court brief. A legal assistants role in preparing a court brief usually involves conducting legal research and analysis and preparing a rough draft. The final document requires the attorneys signature and is usually prepared by the attorney assigned to the case.

CHAPTER 18 ASSIGNMENTS
ASSIGNMENT 1 In the following exercise the assignment is to prepare a trial court brief. The assignment contains the assignment memo from the supervisory attorney that includes all the available facts of the case. Complete the brief based on these facts. When preparing the heading of each assignment, use your name for the To line, and put "Supervisory Attorney" after the "From." Following the assignment is a reference to the applicable enacted and case law. The first time you cite the opinion, use the citation format you are given for the opinion in the assignment. For Example: Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d 257 (1993). This is how you should cite this opinion the first time it is used in the memorandum. When you need to quote from an opinion in the memo, cite to the U.S. or regional reporter page cite only. For Example: Melia, 846 P.2d at 258, or Id. at 258. The page number where each page begins is printed in bold and preceded by two asterisks. Martin Melia filed suit seeking compensatory and punitive damages against Dillon **259Companies, Inc. (Dillon) upon allegations of false imprisonment and malicious prosecution. The jury returned a verdict in favor of Melia, awarding compensatory damage of $20,200. Page 259 begins after **259. Do not conduct additional research. Complete the assignment using the facts, enacted law, and case law contained in the assignment. For the purposes of the assignment, assume the cases have not been overturned or modified by subsequent court decisions. In most instances a simple trial court brief such as the one presented in this assignment would not include a table of contents, table of authorities, or preliminary statement section. It would be composed of a question presented, statement of the case/facts, and argument sections. For the purposes of this assignment do not include a table of contents, table of authorities sections, or a preliminary statement. For the title page use the following format: IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO UNITED STATES OF America, Plaintiff, vs. Cr. 2002-122 RJ

DENISE CLEM, Defendant.

UNITED STATES RESPONSE TO DEFENDANTS MOTION TO SUPPRESS Memo: To: (Your name) From: Supervisory Attorney Re: U. S. v. Clem, Cr. 2002-122 For several months local police and Drug Enforcement Administration (DEA) agents conducted an investigation into alleged drug activity at the residence of the defendant, Denise Clem. Acting on information provided by an informant, DEA agents searched garbage bags at defendants residence. The bags were located next to a tree approximately ten feet from defendants house and twenty feet from the public sidewalk. The agents did not have a search warrant. Trash is usually collected by the garbage collectors at the sidewalk. The garbage collectors who usually collect the trash stated that on occasion they would collect bags located next to the tree if they were not running late. They stated that they would leave the bags if they were too busy to take the time to walk on the property. Based on the drugs located in the search, defendant was indicted on charges of possession of heroin. The defendant has filed a motion to suppress the evidence seized from the garbage claiming that it was seized in violation of the Fourth Amendments prohibition against illegal search and seizure. Please prepare a brief in opposition to the motion. Statutory Law: The Fourth Amendment to the United States Constitution. Case Law: California v. Greenwood, 486 U.S.35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). United States v. Hedrick, 922 F.2d 396 (CA 7 1991). ASSIGNMENT 2 This assignment is based on an appellate brief filed in the Colorado Court of Appeals. The Honorable John J. Mitchel prepared the brief while he was in private practice. There were several issues involved in the appeal, only one of which is included in this assignment. The assignment is to prepare an appellant brief on behalf of defendant Litchfield. Follow the format presented in the Appellate Court Briefs section of Chapter 18. The caption of the case is presented below. Prepare a separate Statement of the Case and Statement of the Facts. The issue involves the question of whether the defendant Litchfield was subjected to double jeopardy when he was fined by the Colorado Department of Revenue for possession of marijuana and thereafter convicted and sentenced for possession of marijuana under a criminal statute. Information necessary for preparing the Statement of the Case and Statement of the Facts is presented below. Note that the transcript pages (references to the trial court record) are referenced in parentheses by volume and line. When drafting the brief, include the references to the record in the brief. Following the assignment is a reference to the applicable enacted and case law. The first time you cite the opinion, use the citation format you are given for the opinion in the assignment. For Example: Melia v. Dillon Companies, Inc., 18 Kan. App. 2d 5, 846 P.2d 257 (1993). This is how you should cite this opinion the first time it is used in the memorandum. When you need to quote from an opinion in the memo, cite to the U.S. or regional reporter page cite only. For Example: Melia, 846 P.2d at 258, or Id. at 258. The page number where each page begins is printed in bold and preceded by two asterisks. Martin Melia filed suit seeking compensatory and punitive damages against Dillon **259Companies, Inc., (Dillon) upon allegations of false imprisonment and malicious prosecution. The jury returned a verdict in favor of Melia, awarding compensatory damage of $20,200. Page 259 begins after **259. Following the assignment are the sections of the actual brief that address the double jeopardy issue. Do not refer to the brief until you complete the assignment. This will allow you to compare your brief with the one filed with the court. Information for Statement of the Case and Statement of the Facts: On May 13, 1991, shortly after noon (Vol. 4, p. 67, lines 13-14) Colorado State Patrolman Hoey observed a red Ford Thunderbird traveling north on U.S. Highway 50 in Montrose County, Colorado, about four to five miles north of the town of Montrose, Colorado (Vol. 4, p. 40, lines 1-2). Hoey testified that the car "straddled the white painted marks on the highway" (Vol. 4, p. 41, lines 1-2) and "swerved . . . weaved back over to the shoulder, drove off on to the shoulder one time, and then . . . weaved back and forth in the lane" (ibid., p. 42, lines 4-6). Hoey followed the car for about "a mile and a half" (ibid., lines 22-23), stopped the car for "weaving" (ibid., p. 43, lines 1-2), and met the defendants. Defendant Brackett was the driver (ibid., p. 43, lines 21-25), and defendant Litchfield was in the front passenger seat (ibid., p. 47, lines 15-22 & p. 48, lines 6-9). Hoey had determined at that point that he was going to issue a citation or a warning ticket for weaving (ibid., lines 10-14). Brackett gave Hoey a drivers license and he produced a rental contract for a red Mustang, took the latter back, and gave Hoey a rental contract for the Thunderbird. Hoey also found that neither rental agreement produced by Brackett was signed and both documents said the vehicle could not be operated out of Arizona or Nevada (ibid., p. 45, lines 22-25 & p. 46, lines 1-3).

At trial, Hoey testified: "I called in to the State Patrol Office and requested a supervisor, due to the fact that the vehicle was a rental vehicle out of Arizona and the rental papers indicated that it was not to leave the state of Arizona or Nevada (Vol. 5, Transcript of Hearing 3-22-93, page 7, lines 14-17). Sergeant John Mitchell arrived at Hoey's and the defendants location and Mitchell said to Hoey that since "the vehicle was supposed to be in Arizona or Nevada and it was in Colorado, that we would seize the vehicle, take it back to the State Patrol office, and contact the rental company to see what they wanted done" (Vol. 4, p. 47, lines 37). According to Hoey, the decision to seize was based on " . . . the fact that the vehicle was not supposed to be out of the state of Nevada or Arizona." Mitchell said "he was going to searchgo through the car and do an inventory pursuant to State Patrol policy for weapons" (Vol. 4, lines 21-24). Mitchells search proceeded from the passenger compartment, where he detected a musty smell that he could not identify, to the trunk, which he opened with the car keys, where he found several large packages of marijuana (Vol. 4, p. 98, lines 1-8). During the social conversation between Hoey, Brackett, and Litchfield, Mitchell said "You are under arrest. Down on the ground" (ibid., p. 52, lines 18-24). Litchfield's fingerprints were found on one of the packages of marijuana (Vol. 5, Transcript of Hearing 3-22-93, page 14, lines 1-25, page 15, lines 1-17). On May 13, 1991 defendant George Litchfield was arrested and charged with Possession of More than Eight Ounces of Marijuana with Intent to Sell, 18-18-106(8) CRS (F4). Defendant filed a motion to suppress evidence obtained by the police from the unlawful seizure of his vehicle, his person, and search of the vehicle (Vol. I, pages 12-13). Defendant filed a motion to dismiss this action on double jeopardy grounds, alleging double punishment for the same conduct (Vol. I, pages 40-42). The trial court denied defendant's motions to suppress evidence and for dismissal (Vol. I, pages 66-72, Vol. 5, pages 1-33). The defendant was tried and convicted on the charge of Possession of More than Eight Ounces of Marijuana with Intent to Sell, 18-18-106(8) CRS after trial to the court on March 22, 1993. On June 21, 1993, the defendant was sentenced to five years in the Department of Corrections. On May 29, 1991, before conviction and sentence in the criminal case, the Colorado Department of Revenue penalized the defendant by imposing a tax of $240,000.00 on possession of marijuana at the rate of $100.00 per ounce, and, in addition, the department imposed a penalty of $2,400,000.00 for possession of marijuana, at a rate of ten times the amount of the tax, pursuant to section 39-28.7-108 CRS (Vol. 1, pages 40-42). The defendant timely filed an objection in the administrative proceeding, challenging the computation and the legality of the assessment by the Department of Revenue (Vol. 5, Transcript of Hearing 3-10-92, page 3, lines 21-25, page 4, lines 1-25, page 5, lines 1-25, page 6, lines 1-14). The administrative proceeding has not been resolved. Statutes and Other Authorities: Amendment V, U.S. Constitutionnor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. Article II, Section 18, Constitution of Coloradonor shall any person be twice put in jeopardy for the same offense. Colorado Statute 18-18-106(8). Provides penalties for possession of marijuana. This statute has been repealed and replaced by 18-18-406. But for the purposes of this assignment use 18-18-106(8). Colorado Statute 39-28.7-108 A statute that allowed the Colorado Department of Revenue to tax on the possession of marijuana at a rate of $100.00 per ounce and impose a penalty at a rate of ten times the amount of the tax. This statute has been repealed. But for the purposes of this assignment assume it is still in effect. Case Law: In re: Kurth Ranch, 986 F.2d 1308 (CA9, 1993) U.S. v. Halper, 490 U.S. 435, 104 L.Ed.2d 487 (1989) Caption: COURT OF APPEALS, STATE OF COLORADO No. 93 CA 1278 ________________________________________________________________________ THE PEOPLE OF THE STATE OF COLORADO, Plaintiff/Appellee vs. GEORGE R. LITCHFIELD, Defendant/Appellant and, JAMES BRACKETT, Defendant/Appellant ________________________________________________________________________ Appeal from the District Court of Montrose County Honorable Jerry D. Lincoln, Judge No.'s 91 CR 55 & 91 CR 56 ________________________________________________________________________

APPELLANT LITCHFIELDS BRIEF ON APPEAL ________________________________________________________________________ ANSWER ASSIGNMENT 2 FOR REVIEW AFTER COMPLETING ASSIGNMENT COURT OF APPEALS, STATE OF COLORADO No. 93 CA 1278 ________________________________________________________________________ THE PEOPLE OF THE STATE OF COLORADO, Plaintiff/Appellee vs. GEORGE R. LITCHFIELD, Defendant/Appellant and, JAMES BRACKETT, Defendant/Appellant ________________________________________________________________________ Appeal from the District Court of Montrose County Honorable Jerry D. Lincoln, Judge No.'s 91 CR 55 & 91 CR 56 ________________________________________________________________________ APPELLANT LITCHFIELD'S BRIEF ON APPEAL ________________________________________________________________________ John J. Mitchel, #12430 Attorney for Defendant Litchfield

TABLE OF CONTENTS

1. Table of cases, statutes, and other authorities....... 3 2. Statement of Issues Presented for Review.............4 3. Statement of the Case.................................4 4. Facts...............................................5 5. Summary of Argument...................................6 6. Argument............................................6 7. Conclusion..........................................7 TABLE OF STATUTES, CASES, RULES, AND OTHER AUTHORITIES STATUTES: 18-18-106(8) CRS ...........................................4 39-28.7-108 CRS..........................................4 CASES: In re: Kurth Ranch, 986 F.2d 1308 (CA9, 1993).............6 U.S. V. Halper, 490 U.S. 435, 104 L.Ed.2d 487 (1989)......6

OTHER AUTHORITIES: Amendment V, U.S. Constitution ...........................6 Art. II, Section 18, Constitution of Colorado...............6

STATEMENT OF ISSUE PRESENTED FOR REVIEW The defendant was punished by the State of Colorado for possession of marijuana by assessment of a penalty of 2.4 million dollars by the Colorado Department of Revenue. Thereafter, Litchfield was convicted and sentenced for possession of marijuana, resulting in the defendant being subjected twice to punishment for the same conduct, in violation of the U.S. and Colorado constitutions. STATEMENT OF THE CASE On May 13, 1991 the defendant was arrested and charged with Possession of More than Eight Ounces of Marijuana with Intent to Sell, 18-18-106(8) CRS (F4) and, Special Offender, 18-18-107 CRS (F2). On May 29, 1991 defendant was assessed by the Colorado Department of Revenue a $240,000.00 tax and a 2.4 million dollar penalty for possession of marijuana, pursuant to section 39-28.7-108 CRS (Vol. I, pages 40-42). Defendant moved by written motion to suppress evidence obtained by the police from the unlawful seizure of his vehicle, his person, and search of the vehicle (Vol. I, pages 12-13). Defendant moved by written motion to dismiss this action on double jeopardy grounds, alleging double punishment for the same conduct (Vol. I, pages 40-42). The trial court denied defendant's motions to suppress evidence and for dismissal (Vol. I, pages 66-72, Vol. 5, pages 1-33). The defendant was tried and convicted on the charge of Possession of More than Eight Ounces of Marijuana with Intent to Sell, 18-18-106(8) CRS after trial to the court on March 22, 1993. Count two was dismissed on the People's motion prior to trial. On June 21, 1993, the defendant was sentenced to five years in the Department of Corrections. FACTS On May 13, 1991, shortly after noon (Vol. 4, p. 67, lines 13-14), Colorado State Patrolman Hoey observed a red Ford Thunderbird travelling north on U.S. Highway 50 in Montrose County, Colorado, about four to five miles north of the town of Montrose, Colorado (Vol. 4, p. 40, lines 1-2). Hoey testified that the car "straddled the white painted marks on the highway" (Vol. 4, p. 41, lines 1-2) and "swerved . . . weaved back over to the shoulder, drove off on to the shoulder one time, and then . . . weaved back and forth in the lane" (ibid., p. 42, lines 4-6). Hoey followed the car for about "a mile and a half" (ibid., lines 22-23), stopped the car for "weaving" (ibid., p. 43, lines 1-2), and met the defendants. Defendant Brackett was the driver (ibid., p. 43, lines 21-25), and defendant Litchfield was in the front passenger seat (ibid., p. 47, lines 15-22 & p. 48, lines 6-9). Hoey had determined at that point that he was going to issue a citation or a warning ticket for weaving (ibid., lines 10-14). Brackett gave Hoey a drivers license and he produced a rental contract for a red Mustang, took the latter back, and gave Hoey a rental contract for the Thunderbird. Hoey compared the VIN number on the rental contract with the VIN number on the car, and they matched (ibid p. 44, lines 1-11). Hoey also found that neither rental agreement produced by Brackett was signed and both documents said the vehicle could not be operated out of Arizona or Nevada (ibid., p. 45, lines 22-25 & p. 46, lines 1-3). At trial, Hoey testified: "I called in to the State Patrol Office and requested a supervisor, due to the fact that the vehicle was a rental vehicle out of Arizona and the rental papers indicated that it was not to leave the state of Arizona or Nevada (Vol. 5, Transcript of Hearing 3-22-93, page 7, lines 14-17). Sergeant John Mitchell arrived at Hoey's and the defendants location and Mitchell said to Hoey that since "the vehicle was supposed to be in Arizona or Nevada and it was in Colorado, that we would seize the vehicle, take it back to the State Patrol office, and contact the rental company to see what they wanted done" (Vol. 4, p. 47, lines 37). According to Hoey, the decision to seize was based on " . . . the fact that the vehicle was not supposed to be out of the state of Nevada or Arizona" (Vol. 4, p. 62, lines 16-19). Mitchell said "he was going to searchgo through the car and do an inventory pursuant to State Patrol policy for weapons" (Vol. 4, lines 21-24, Vehicles). Mitchell's search proceeded from the passenger compartment, where he detected a musty smell which he could not identify, to the trunk, which he opened with the car keys, where he found several large packages of marijuana (Vol. 4, p. 98, lines 1-8). During the social conversation between Hoey, Brackett, and Litchfield, Mitchell said, "You are under arrest. Down on the ground" (ibid., p. 52, lines 18-24). Litchfield's fingerprints were found on one of the packages of marijuana. (Vol. 5, Transcript of Hearing 3-22-93, page 14, lines 1-25, page 15, lines 1-17). On May 29, 1991, before conviction and sentence in the criminal case, the Colorado Department of Revenue penalized the defendant by imposing a tax of $240,000.00 on possession of marijuana at the rate of $100.00 per ounce, and, in addition, the department imposed a penalty of $2,400,000.00 for possession of marijuana, at a rate of ten times the amount of the tax, pursuant to section 39-28.7-108 CRS (Vol. 1, pages 40-42). The defendant timely filed an objection in the administrative proceeding, challenging the computation and the legality of the assessment by the Department of Revenue (Vol. 5, Transcript of Hearing 3-10-92, page 3, lines 21-25, page 4, lines 1-25, page 5, lines 1-25, page 6, lines 1-14). The administrative proceeding has not been resolved. The criminal sanction was imposed after the tax and penalty of 2.64 million dollars was assessed. SUMMARY OF ARGUMENT The penalty imposed by the state through the Department of Revenue was punishment for possession of marijuana. The subsequent punishment of criminal conviction and sentence to the Department of Corrections violates the double jeopardy clause of Amendment V, U.S. Constitution, and Art. II, Section 18, Constitution of Colorado.

ARGUMENT The double jeopardy clauses of Amendment V, U.S. Constitution, and Art. II, Section 18, Constitution of Colorado prohibit multiple punishments for the same offense. U.S. V. Halper, 490 U.S. 435, 104 L.Ed.2d 487 (1989). The multiple punishment prohibition applies when the state tries to criminally punish a citizen twice for the same offense. A disproportionately large civil penalty imposed in a subsequent civil proceeding may constitute punishment within the meaning of the double jeopardy rule. Halper, supra. SEE ALSO: In re: Kurth Ranch, 986 F.2d 1308 (CA9, 1993). InIn re: Kurth Ranch, the Ninth Circuit Court of Appeals affirmed the district court for the district of Montana ruling that a $100.00 per ounce marijuana tax assessed pursuant to Montana's Dangerous Drug Tax constituted a punishment within the scope of the Fifth Amendment. In Kurth, the defendants were assessed a tax of nearly $865,000.00 for marijuana plants. The ruling applies to the assessment; no payment was required in order to trigger double jeopardy protection. The Kurths administratively challenged the computation and the legality of the assessment. That administrative challenge was suspended pending resolution of the Kurths criminal charges. The Kurths then pleaded guilty and received sentences in the criminal case. In this case, the Colorado Department of Revenue assessed the defendant a tax of $240,000.00 on his possession of marijuana at the rate of $100.00 per ounce, just as in Kurth. In addition, the department assessed a penalty of $2,400,000.00 for the possession of marijuana, at the rate of ten times the amount of the tax assessed. After assessment of tax and penalty, the defendant administratively challenged the tax and penalty. After the tax and penalty assessment, the criminal prosecution resulted in conviction and sentence to the Colorado Department of Corrections. At the hearing on defendant's motion to dismiss for violation of double jeopardy protection, the state presented no evidence that would tend to show a rational relationship between the tax and penalty and the actual loss to the state. The government failed to attempt to show that the tax and penalty are anything other than a criminal penalty. The Colorado tax and penalty for possession of marijuana are more onerous than the Montana tax. The Colorado tax and penalty are at least equal to the Montana tax as being the equivalent of criminal penalties, regardless of the legislative label. The first criminal penalty having been assessed against the defendant, the second criminal penalty in the form of criminal conviction and Department of Corrections sentence must be reversed and vacated. CONCLUSION The penalty imposed by the state through the Department of Revenue was punishment for possession of marijuana. The subsequent punishment of criminal conviction and sentence to the Department of Corrections violates the double jeopardy clause of the Fifth Amendment, U.S. Constitution, and Art. II, Section 18, Constitution of Colorado. The judgment of conviction should be reversed and this court should order this case dismissed. Defendant Litchfield adopts all arguments submitted by defendant Brackett in his brief on appeal. Respectfully submitted this _______ day of __________, 1994. ______________________________ JOHN J. MITCHEL, Attorney for Defendant Litchfield

CHAPTER 18 LINKS TO INTERNET RESOURCES

Using "trial court briefs" or "appellate court briefs" as a topic, there is a wide range of Web sites (thousands) that refer to trial and appellate court briefs. The following is a summary of the categories of sites that may prove helpful when working on court briefs: Sites of federal and state trial and appellate courts. Some of these sites include the court rules and guides and practice tips for preparing briefs. Sites that provide the trial or appellate court briefs filed in specific cases, such as the O. J. Simpson case or the Florida presidential election cases. Sites that advertise businesses that assist in the preparation of trial and appellate court briefs. Sites for schools that advertise programs that include as part of the curriculum trial and appellate advocacy. Sites that provide links to appellate court Web sites, court rules, opinions, and resources. As with most topics on the Web, the problem is not the lack of sites, but too many sites. You are more likely to avoid the frustration of finding too many sites by narrowing your search to a specific type of trial or appellate court brief.