The Colorado Supreme Court on Monday rejected the prosecution’s argument that a woman’s Adams County trespassing conviction — which all parties believed was unconstitutional — should nevertheless stand because the violation was not obvious at the time of her sentencing.

The constitutional prohibition on double jeopardy protects defendants from being prosecuted again for the same offense following acquittal, but also from receiving multiple punishments for the same criminal conduct unless authorized by law. If a jury finds a defendant’s action simultaneously amounts to a less serious and a more serious crime, the convictions will merge, such that the defendant only stands guilty of the more serious offense.

The Colorado Attorney General’s Office conceded that Taunia Marie Whiteaker’s convictions for first-degree trespass and second-degree burglary would normally merge into the greater offense of burglary, given the overlap between the two crimes. But it insisted the relationship between the offenses was not obvious at the time of Whiteaker’s trial and the defense did not object to the separate convictions at the time. Therefore, there was no need to correct the constitutional violation on appeal.

“Fair enough, but it doesn’t matter whether the error here was, or should have been, obvious to the district court,” wrote Justice William W. Hood III in the May 6 opinion. “Here, the district court had no authority to sentence Whiteaker for both burglary and trespass — a greater offense and its lesser-included offense. And without statutory authority, the resulting sentence was illegal.”

Heading into the Supreme Court, both the prosecution and defense agreed that under the current understanding of the law, Whiteaker’s dual convictions clearly violated the principle of double jeopardy. The stumbling block was a 1997 decision of the court, People v. Garcia, that declared trespassing was not a lesser offense of burglary.

The state’s Court of Appeals, in siding against Whiteaker, did not believe the Supreme Court ever overruled Garcia. The attorney general’s office noted that even if the appellate court was mistaken, the error was necessarily not “obvious” and Whiteaker’s convictions should both stand.

During oral arguments, multiple members of the Supreme Court appeared bothered by the government’s resistance to merging Whiteaker’s convictions, given the undisputed constitutional violation.

“We’re talking about something that’s easily fixable and should be corrected. This person should not be staying convicted of two crimes,” said Justice Carlos A. Samour Jr.

“What is the harm to the government of merging these two offenses?” added Justice Richard L. Gabriel. “Why are we here?”

Hood, in the Supreme Court’s opinion, clarified that double jeopardy errors from sentencing require judges to merge the convictions.

“This case is a bit of an outlier,” he acknowledged. But “Whiteaker was given an illegal, unconstitutional punishment. The just result is readily apparent and easily achievable: Merge the lesser-included offense into the greater.”

The case is Whiteaker v. People.