CO Code § 18-1.3-803 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 1.3 - Sentencing in Criminal Cases|Part 8 - Special Proceedings - Sentencing of Habitual Criminals|§ 18-1.3-803. Verdict of Jury

  If the allegation of previous convictions of other felony offenses is included in an indictment or information and if a verdict of guilty of the substantive offense with which the defendant is charged is returned, the court shall conduct a separate sentencing hearing to determine whether or not the defendant has suffered such previous felony convictions. As soon as practicable, the hearing shall be conducted by the judge who presided at trial or before whom the guilty plea was entered or a replacement for said judge in the event he or she dies, resigns, is incapacitated, or is otherwise disqualified as provided in section 16-6-201, C.R.S.    An information or indictment seeking the increased penalties authorized by section 18-1.3-801 shall identify by separate counts each alleged former conviction and shall allege that the defendant on a date and at a place specified was convicted of a specific felony. If any such conviction was had outside this state, the information or indictment shall allege that the offense, if committed in this state, would be a felony.    Upon arraignment of the defendant, such defendant shall be required to admit or deny that such defendant has been previously convicted of the crimes identified in the information or indictment. If the defendant refuses to admit or deny the previous convictions, such refusal shall be treated as a denial by such defendant that the defendant has been convicted as alleged. If the defendant admits to having been convicted as alleged in any count charging a previous conviction, no proof of such previous conviction is required. Such admission shall constitute conclusive proof in determining whether the defendant has been previously convicted of an alleged felony and the court shall sentence the defendant in accordance with section 18-1.3-801.    If the defendant denies that he or she has been previously convicted as alleged in any count of an information or indictment, the trial judge, or a replacement judge as provided in subsection (1) of this section, shall determine by separate hearing and verdict whether the defendant has been convicted as alleged. The procedure in any case in which the defendant does not become a witness in his or her own behalf upon the trial of the substantive offense shall be as follows:   The jury shall render a verdict upon the issue of the defendant's guilt or innocence of the substantive offense charged;    If the verdict is that the defendant is guilty of the substantive offense charged, the trial judge, or a replacement judge as provided in subsection (1) of this section, shall proceed to try the issues of whether the defendant has been previously convicted as alleged. The prosecuting attorney has the burden of proving beyond a reasonable doubt that the defendant has been previously convicted as alleged.         If, upon the trial of the issues upon the substantive offense charged, the defendant testifies in his or her own defense and denies that he or she has been previously convicted as alleged, the prosecuting attorney on rebuttal may present all evidence relevant to the issues of previous convictions for the sole purpose of impeachment of the defendant's credibility, subject to the rules governing admission of evidence at criminal trials.    If, upon the trial of the issues upon the substantive offense charged, the defendant testifies in his or her own defense and, after having denied the previous conviction under subsection (3) of this section, admits that he or she has been previously convicted as alleged, the trial judge, or a replacement judge as provided in subsection (1) of this section, shall, in any sentencing hearing, consider any admissions of prior convictions elicited from the defendant in connection with his or her testimony on the substantive offense only as they affect the defendant's credibility. In any sentencing hearing, the prosecution shall be required to meet its burden of proving beyond a reasonable doubt the defendant's prior convictions by evidence independent of the defendant's testimony.       If the prosecuting attorney does not have any information indicating that the defendant has been previously convicted of a felony prior to the time a verdict of guilty is rendered on a felony charge and if thereafter the prosecuting attorney learns of the felony conviction prior to the time that sentence is pronounced by the court, he or she may file a new information in which it shall be alleged in separate counts that the defendant has been convicted of the particular offense upon which judgment has not been entered and that prior thereto at a specified date and place the defendant has been convicted of a felony warranting application of increased penalties authorized in this section and sections 18-1.3-801 and 18-1.3-802. The defendant shall be arraigned upon the new information, and, if the defendant denies the previous conviction, the trial judge, or a replacement judge as provided in subsection (1) of this section, shall try the issue prior to imposition of sentence.      History. Source: L. 2002: Entire article added with relocations, p. 1428, § 2, effective October 1.    Editor's note:   This section is similar to former § 16-13-103 as it existed prior to 2002.   ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. PROCEDURE AND EVIDENCE.    III. VERDICT OF JURY.     I. GENERAL CONSIDERATION.   Law reviews. For article, “Recent Judicial Modification of Habitual Criminal Act”, see 23 Dicta 84 (1946). For article, “Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement”, see 22 Rocky Mt. L. Rev. 221 (1950). For article, “Prosecution of Habitual Criminals”, see 27 Dicta 376 (1950). For article, “Joinder of Criminal Charges, Election, Duplicity”, see 30 Dicta 117 (1953). For article, “Colorado's Habitual Criminal Act: An Overview”, see 12 Colo. Law. 215 (1983).   Annotator's note. Since § 18-1.3-803 is similar to § 16-13-103 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, repealed § 39-13-3 , C.R.S. 1963, § 39-13-3 , CRS 53, CSA, C. 48, § 555(3), and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   This section does not restrict § 16-11-101 . Section 16-11-101 contains no directive requiring that procedures similar to those of this section be followed. The general assembly's decision to enact § 16-11-101 without procedures similar to this section indicates its intent not to conform § 16-11-101 to the requirements of this section even though it had the right to do so. People v. Smith, 195 Colo. 404 , 579 P.2d 1129 (1978).   Conviction based upon plea of nolo contendere is “conviction” for purposes of enhancing punishment pursuant to this section. People v. Goodwin, 197 Colo. 47 , 593 P.2d 326 (1979).   Both statutory and decisional law served to nullify the effect of the court of appeals' reversal of the trial court's dismissal of the habitual criminal charge against defendant and remand to retry defendant as a habitual criminal, inasmuch as settled law prohibits a retrial on that charge. Smith v. People, 872 P.2d 685 (Colo. 1994).   The three findings for habitual criminal sentencing are not in addition to the “fact” of the prior convictions. Therefore, the court may find that the prior crimes were separately brought and tried, that they arose out of separate and distinct criminal episodes, and that the accused was the person named in each prior conviction without violating the principle in Apprendi v. New Jersey, 530 U.S. 466 (2000). People v. Nunn, 148 P.3d 222 (Colo. App. 2006).   Applied in People v. Trujillo, 631 P.2d 146 (Colo. 1981); People v. Quintana, 665 P.2d 605 (Colo. 1983).   II. PROCEDURE AND EVIDENCE.   Court permission to file an information under the habitual criminal act is not required. People v. District Court, 93 Colo. 314 , 25 P.2d 738 (1933).   Purpose of bifurcated trial and separate verdict provisions. The bifurcated trial and separate verdict provisions are manifestations of legislative intent to require that an adjudication of habitual criminality be made only in accordance with the same procedural and constitutional safeguards traditionally associated with a trial on guilt or innocence. People v. Quintana, 634 P.2d 413 (Colo. 1981), overruled on other grounds in People v. Porter, 2015 CO 34, 348 P.3d 922.   Because of the special nature of the habitual criminal adjudication process, any waiver of the jury trial guaranteed in habitual criminal adjudications must be governed by the same constitutional principles associated with a waiver of the right to a jury trial on felony criminal charges. Moore v. People, 707 P.2d 990 (Colo. 1985).   And purpose of requiring proof of prior conviction beyond reasonable doubt. The statutory requirement of proof beyond a reasonable doubt manifests a deliberate legislative decision to impose on the state, rather than the defendant, the risk of an erroneous decision as to the prior conviction counts. People v. Quintana, 634 P.2d 413 (Colo. 1981), overruled on other grounds in People v. Porter, 2015 CO 34, 348 P.3d 922.   Statutory procedures mandate bifurcated trial to obviate prejudicial effect of prior convictions on the trial of the substantive offense. People v. Lucero, 200 Colo. 335 , 615 P.2d 660 (1980).   Burden of proof as to constitutionality of prior conviction. Upon challenging the validity of the prior conviction, the defendant's burden is to make a prima facie showing that the challenged conviction was unconstitutionally obtained; when such showing is made, the conviction is not admissible unless the prosecution establishes, by a preponderance of evidence, that the conviction was obtained in accordance with the defendant's constitutional rights. People v. Quintana, 634 P.2d 413 (Colo. 1981), overruled on other grounds in People v. Porter, 2015 CO 34, 348 P.3d 922.   Because there is no longer a statutory right to a jury determination of habitual criminal status, and because defendant's admissions to prior felony convictions act as conclusive proof of the prior counts, any error by the trial court in failing to obtain from defendant an explicit personal waiver of rights was harmless beyond a reasonable doubt. People v. Deroulet, 22 P.3d 939 (Colo. App. 2000), rev'd on other grounds, 48 P.3d 520 (Colo. 2002).   The determination of habitual criminality is the sole province of the trial court. People v. Porter, 2013 COA 130 , 353 P.3d 852, rev'd on other grounds, 2015 CO 34, 348 P.3d 922.   Information alleging previous convictions in foreign state held sufficient. Wright v. People, 116 Colo. 306 , 181 P.2d 447 (1947); People v. Swain, 43 Colo. App. 343, 607 P.2d 396 (1979).   Where information fails to allege that out-of-state convictions would be felonies if committed in Colorado, such failure does not warrant reversal where it causes no prejudice to defendant. People v. Weighard, 709 P.2d 81 (Colo. App. 1985); People v. Drake, 785 P.2d 1257 (Colo. 1990).   When a defendant is arraigned, he can admit a previous conviction or deny his identity. Routa v. People, 117 Colo. 564 , 192 P.2d 436 (1948).   Where defendant enters guilty plea, proof of prior convictions is not required. Vigil v. People, 137 Colo. 161 , 322 P.2d 320 (1958).   Where it was held that the plea of defendant to the habitual criminal counts of an information was in effect a plea of guilty, it followed that defendant pleaded guilty to every fact averred in the counts, and there was nothing requiring proof of the things admitted by such plea. Hahn v. People, 126 Colo. 451 , 251 P.2d 316 (1952).   What would or would not constitute competent evidence to establish prima facie proof of former felony convictions under this section is not material where a defendant enters pleas of guilty to charges of such former convictions. Vigil v. People, 137 Colo. 161 , 322 P.2d 320 (1958).   Likewise, admissions of defendant dispense with need for other proof. In a prosecution under this section prior convictions of felonies, established by the admissions of the accused on the witness stand, relieve the prosecution of the necessity of other proof thereof. Hackett v. Tinsley, 143 Colo. 203 , 352 P.2d 799, cert. denied, 364 U.S. 874, 81 S. Ct. 118, 5 L. Ed. 2d 96 (1960), overruled, People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).   Use of defendant's admission of prior convictions. The impeachment use of an admission of prior convictions elicited from a defendant who chooses to testify is permissible in the trial of the substantive offense underlying a habitual criminal charge; however, the substantive use of that same evidence to relieve the prosecution of its statutory and constitutional burden of proving the elements of a separate status, habitual criminality, by introducing evidence independent of the defendant's testimony such as duly authenticated records of a defendant's prior convictions, impermissibly burdens the exercise of a defendant's right to testify in his own behalf. People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).   Trial court's ruling that evidence of the defendant's prior convictions elicited during his trial on the substantive charges, would be admissible for substantive purposes in the habitual criminal proceeding was an error which its “bifurcation” of the jury's deliberations failed to remedy. People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).   Retroactive application. The decision in People v. Chavez is to be given retroactive application. People v. Tafoya, 654 P.2d 1342 (Colo. App. 1982).   This section addresses the defendant's testimony at the trial phase and the permissible use thereof by acknowledging that, should the defendant choose to testify during trial, the prosecution may confront the defendant for the sole purpose of impeachment of the defendant's credibility, but by also making clear that a defendant's admissions during the trial phase are not conclusive proof of the existence of prior convictions. People v. Ziglar, 45 P.3d 1266 (Colo. 2002).   Because prior felony evidence is relevant to habitual criminal proceedings, when a defendant testifies during the sentencing phase, the judge may consider admissions elicited at that time as substantive evidence; while such admissions are not “conclusive proof”, they are some evidence that those felonies exist. People v. Ziglar, 45 P.3d 1266 (Colo. 2002).   Admission of identity as to some previous convictions is not general plea of guilty to all. Smalley v. People, 116 Colo. 598 , 183 P.2d 558 (1947).   Effect on right to testify. The right of a defendant charged with habitual offender counts to testify is impermissibly burdened by the threat of impeachment by means of prior conviction without procedural protections requiring independent proof of the habitual offender allegations. The defendant is constitutionally entitled to advance notice that the jury would be specifically instructed to consider evidence of his prior convictions only on the issue of his credibility, and that the prosecution would still have the burden of proving his prior convictions by independent evidence at the habitual offender stage of the trial. People v. Tafoya, 654 P.2d 1342 (Colo. App. 1982).   Statute does not explicitly delineate procedures where defendant admits convictions. The habitual criminal statute does not explicitly delineate the procedures to be followed at trial if the defendant takes the witness stand and admits that he has been convicted previously as alleged. People v. Chavez, 621 P.2d 1362 (Colo.), cert. denied, 451 U.S. 1028, 101 S. Ct. 3019, 69 L. Ed. 2d 398 (1981).   Duty of state to prove disputed identity. Where defendant denied his identity at arraignment under this section, it was incumbent upon the people to prove his identity and the previous convictions, and it became the statutory duty of the jury to find whether or not he has suffered such previous convictions. Routa v. People, 117 Colo. 564 , 192 P.2d 436 (1948).   The state has the burden of proving the prior conviction of accused and establishing his identity as the person previously convicted. People v. Wolff, 111 Colo. 46 , 137 P.2d 693 (1943); O'Day v. People, 114 Colo. 373 , 166 P.2d 789 (1946).   And identity must be proved with particularity. This section requires that where the defendant denies his identity as the person previously convicted, such fact is to be proved with particularity. The cases have consistently required strict proof. DeGesualdo v. People, 147 Colo. 426 , 364 P.2d 374 (1961).   Evidence inadequate to establish identity. DeGesualdo v. People, 147 Colo. 426 , 364 P.2d 374 (1961).   Trial court may not preempt defendant's right to jury trial. The trial court is without authority to preempt a defendant's right to a jury trial on the habitual criminal counts solely on the basis of the defendant's testimony given in defense of the substantive charge. People v. Mason, 643 P.2d 745 (Colo. 1982).   Retroactive application of the rule requiring a jury determination of habitual criminal charges was denied because of the adverse impact such application would have on the administration of justice, and because the reliability of the inquiry into the truth of the defendant's convictions would not have been significantly enhanced by submission of the issue to the jury. People v. Moore, 707 P.2d 990 (Colo. 1985).   The language contained in paragraph (b) of subsection (5) referencing testimony relates entirely to the defendant's testimony elicited during the trial phase. People v. Ziglar, 45 P.3d 1266 (Colo. 2002).   Accused's testimony on own behalf merges trial of crime and former convictions. Where a defendant testifies in his own behalf, or where evidence of former convictions is introduced in impeachment, the question of former convictions is thus opened for consideration and resolution, all the facts concerning prior convictions become admissible, and the main charge may then be submitted and disposed of without separation. Mitchell v. People, 137 Colo. 5 , 320 P.2d 342 (1958); People v. Trujillo, 40 Colo. App. 220, 577 P.2d 297 (1977).   When a defendant, having denied at arraignment the alleged prior convictions supporting an habitual criminal determination, elects to testify at trial and admits the charged convictions, the habitual criminal allegations may be submitted to the jury along with charges of the substantive offense. People v. Trujillo, 40 Colo. App. 220, 577 P.2d 297 (1977).   And permits cross-examination of accused on counts of prior convictions. In a criminal prosecution where an information contains counts under the habitual criminal act denied by defendant, and the prosecution offers evidence of the substantive offense only, if then the defendant voluntarily takes the witness stand to testify in his own behalf it is not error to require him upon cross-examination to testify to facts pertinent to the charge of previous felony convictions. Mitchell v. People, 137 Colo. 5 , 320 P.2d 342 (1958).   But refusal to take stand bars such proof at trial of crime. Under provisions of the witness statute, it is defendant's right and privilege to refuse to take the witness stand, and in that event a district attorney cannot offer evidence on the issue of previous convictions until the jury has determined the question of his guilt upon the main or substantive offense. Mitchell v. People, 137 Colo. 5 , 320 P.2d 342 (1958).   Right of defendant to be advised of consequences of guilty plea sufficiently protected. Glass v. People, 127 Colo. 210 , 255 P.2d 738 (1953).   Admission of exhibits as evidence of prior conviction held not prejudicial. Where three separate previous felony convictions of the defendant were clearly established by competent evidence and separate verdicts to that effect were returned by the jury, and these verdicts were in addition to one finding that the defendant had been convicted of a felony in Missouri, sentence of life imprisonment would be mandatory under the three verdicts supported by competent evidence, and defendant was not prejudiced by admitting certain exhibits as evidence of the alleged Missouri conviction. Wolff v. People, 123 Colo. 487 , 230 P.2d 581 (1951).   Admission into evidence of offenses not alleged as basis of habitual criminality during the second phase of a bifurcated trial constituted reversible error. People v. Lucero, 200 Colo. 335 , 615 P.2d 660 (1980).   Where defendant withdrew pretrial motion for continuance to preserve his speedy trial rights, court did not abuse its discretion in denying post-trial motion for continuance in order to hold a habitual criminal hearing as soon as practicable under subsection (1) even though defense counsel consequently had insufficient time to investigate the validity of the defendant's prior convictions. People v. Copeland, 976 P.2d 334 (Colo. App. 1998), aff'd on other grounds, 2 P.3d 1283 (Colo. 2000).   Subsection (1) clearly and unambiguously states that the habitual criminal hearing shall be conducted by the judge who presided at the trial, subject to four stated exceptions. Thus, it was reversible error for another judge to handle the habitual criminal hearing when the court merely found that the trial judge was unavailable. People v. Johnson, 74 P.3d 349 (Colo. App. 2002).   This section does not allow a prosecutor, for good cause or otherwise, to add known habitual criminal counts after a guilty plea has been accepted. People v. Rieger, 128 P.3d 295 (Colo. App. 2005).   III. VERDICT OF JURY.   Jury determines identity on counts of former convictions, not guilt. Proceedings before the jury on the habitual criminal counts are not in determination of whether defendant is or is not guilty of the crime, but go only to issues pertaining to identity of the defendant as being the individual named in such count as the one who was previously convicted of a felony. Brown v. People, 124 Colo. 412 , 238 P.2d 847 (1951).   Under the habitual criminal act, it is the jury's function to determine whether the defendant has been previously convicted. Swift v. People, 174 Colo. 259 , 488 P.2d 80 (1971).   Defendant has a limited right to a jury trial to determine identity; all other questions relating to the habitual criminal statute are matters of law for the court. Once the jury found beyond a reasonable doubt that defendant was the person convicted of three prior felonies, the defendant was not entitled to have any other issues determined by the court. People v. Jones, 967 P.2d 166 (Colo. App. 1997) (decided under law in effect prior to 1995 amendments).   A defendant does not have the right to a jury determination of habitual criminality under the Colorado Constitution or the sixth amendment, therefore the court's determination of whether the defendant has suffered previous felony convictions is not a violation of a defendant's constitutional rights. People v. Edwards, 971 P.2d 1080 (Colo. App. 1998); People v. Johnson, 74 P.3d 349 (Colo. App. 2002).   The determination of habitual criminality is covered under the prior conviction exception and is exempt from the constitutional jury requirement. People v. Felder, 129 P.3d 1072 (Colo. App. 2005).   The issues in the habitual criminal counts are tried by the same jury immediately following the determination of the substantive charge, and they shall forthwith proceed to try those issues without being resworn. This definitely precludes any change in the personnel of the jury. Wolff v. People, 123 Colo. 487 , 230 P.2d 581 (1951); Brown v. People, 124 Colo. 412 , 238 P.2d 847 (1951); Smith v. People, 872 P.2d 685 (Colo. 1994).   No error is committed by a trial court in denying peremptory challenges to jurors made by defendant's counsel after the receipt of verdicts determining the guilt of defendant upon the substantive offenses charged against him and before the presentation of evidence on the habitual criminal counts in the information. Wolff v. People, 123 Colo. 487 , 230 P.2d 581 (1951); Brown v. People, 124 Colo. 412 , 238 P.2d 847 (1951).   The habitual criminal act indicates clearly that the same jury must be utilized for both segments of the prosecution. Quintana v. People, 169 Colo. 295 , 455 P.2d 210 (1969).   Same jury must determine guilt on both substantive and prior offenses. Except when the defendant admits his previous conviction of a crime alleged in the habitual criminal count, the jury which determines his guilt on the substantive offense must forthwith determine that he was the person convicted of the alleged prior crime. Vigil v. People, 196 Colo. 522 , 587 P.2d 1196 (1978); Smith v. People, 872 P.2d 685 (Colo. 1994).   Under plain language of § 16-13-103 (4)(a) and (4)(b), a defendant may not try to court issue of habitual criminal status once jury has convicted defendant of underlying offense. Absent showing of due process violation, jury must decide habitual criminal status. If defendant waives right to jury trial of underlying offense, court determines habitual criminal status of defendant. People v. Clouse, 859 P.2d 228 (Colo. App. 1992).   Subsections (1) and (3), by their terms, plainly establish that the jury empaneled to try the substantive offense charged shall decide whether a defendant is adjudicated a habitual criminal, and the same jury which determines a defendant's guilt on the pending substantive offense must also resolve the validity of the habitual criminal charge. Smith v. People, 872 P.2d 685 (Colo. 1994).   Same-jury requirement is constitutional. Under the habitual criminal statute, the same jury which returns a guilty verdict on the underlying offense must then decide whether the defendant committed the necessary prior crimes to be adjudged an habitual criminal. Despite this “same-jury” requirement in this section, the defendant can have an impartial jury during the habitual criminal sentencing hearing, as guaranteed by §§ 16 and 25 of art. II, Colo. Const.People ex rel. Fault v. District Court ex rel. County of Fremont, 673 P.2d 998 (Colo. 1983).   Prior convictions must be submitted to the jury separately and separate verdicts must be returned by the jury as to each prior conviction. Coppinger v. People, 152 Colo. 9 , 380 P.2d 19, cert. denied, 375 U.S. 923, 84 S. Ct. 270, 11 L. Ed. 2d 167 (1963).   The jury should not be required to find in one form of verdict that the accused was the same person named in both alleged previous convictions; they should have been required to make a determination separately as to each of the two former convictions, because a negative finding as to one count would have rendered the determination a nullity. DeGesualdo v. People, 147 Colo. 426 , 364 P.2d 374 (1961).   Whether previous convictions were constitutionally procured involves a question of law for the court. Swift v. People, 174 Colo. 259 , 488 P.2d 80 (1971).   Prior conviction valid despite invalid sentence. Where one of the previous convictions upon which an habitual criminal conviction was predicated had taken place in New Mexico and it appeared that the defendant was represented by counsel at all stages except sentencing in that proceeding, it may be that his constitutional rights were violated by reason of the absence of counsel at sentencing, but any violation would relate only to that sentence, and his remedy would therefore lie in New Mexico. The punishment as an habitual criminal is based upon prior convictions, and the amount or validity of sentence under a valid conviction is immaterial. Swift v. People, 174 Colo. 259 , 488 P.2d 80 (1971).   Informing jury that penalty is automatically life imprisonment. Where defendant is an habitual criminal and the habitual criminal act is invoked by the people, the court has discretion to refuse the defendant's attorney permission to inform the jury on voir dire that penalty, if defendant is convicted, is automatically life imprisonment. Routa v. People, 117 Colo. 564 , 192 P.2d 436 (1948).   It was not reversible error for same jury to determine identity of all defendants on habitual criminal counts, notwithstanding separation on these issues. Brown v. People, 124 Colo. 412 , 238 P.2d 847 (1951).   Verdict forms were adequate to demonstrate that the jury unanimously agreed that defendant was the same person identified in prosecution documents as having been convicted previously of several felonies. People v. Romero, 767 P.2d 782 (Colo. App. 1988).   Even where the defense counsel does not object to the court's finding that the defendant was an habitual criminal without a separate sentencing hearing, such a finding is reversed because the waiver of such an additional hearing must be personally made by the defendant and not his attorney. People v. Killpack, 793 P.2d 642 (Colo. App. 1990).   Defects in the information and the verdict form concerning the correct file number for the previous conviction were defects of form rather than substance. Such defects do not require reversal where the defendant was not prejudiced by the discrepancy in file numbers. The court found sufficient evidence was presented whereby the jury could find beyond a reasonable doubt that the defendant was previously convicted of felony theft. People v. Young, 923 P.2d 145 (Colo. App. 1995).   Also, an inaccuracy or discrepancy in the date of the prior conviction does not mandate dismissal if the defendant was not prejudiced thereby. Because both the incorrect and the correct dates were within ten years prior to commission of the substantive offense and a reasonable jury could find that defendant's identity was established beyond a reasonable doubt as to the prior convictions, the mistake did not affect defendant's substantive rights. People v. Young, 923 P.2d 145 (Colo. App. 1995); People v. Poindexter, 2013 COA 93 , 338 P.3d 352.   For purposes of this section, two prior convictions will only be considered as one conviction if they arose from the same criminal episode. Even though two prior convictions were entered on the same day, they do not count as one conviction because they were the result of separate and distinct criminal episodes. People v. Young, 923 P.2d 145 (Colo. App. 1995).   Section 18-3-412 specifically incorporates the procedures of this section. People v. Harper, 796 P.2d 4 (Colo. App. 1990).   Convictions must be set forth specifically in the complaint or information, and, if the defendant pleads not guilty to these counts, the validity of the previous convictions must be proven beyond a reasonable doubt. People v. Harper, 796 P.2d 4 (Colo. App. 1990).   The habitual criminal statute requires the prosecution to allege and prove a specific prior felony conviction. For purposes of establishing that the defendant is a habitual criminal and subject to enhanced penalties, the prosecution only needs to establish the fact of the prior conviction. Campbell v. People, 2020 CO 49, 464 P.3d 759.