concurring in part and dissenting in part.
I concur with the majority on Parts I, II, and IV. And, were I not dissenting, I would agree with the majority on Part V.
However, notwithstanding the majority’s' rebanee on the doctrines of invited error and of lesser non-included offenses in Part III, I respectfully dissent because of the jurisdictional aspects of the issues raised therein.
I agree with defendant that the trial court erred by amending the indictment to add the count of electioneering. My agreement is based, in part, on the principle that, if there is substantive amendment of an indictment by a court, the effect of such amendment is to deprive the amending court of jurisdiction.
An indictment may be amended only as “to defects, errors or variances from the proof relating to matters of form, time, place and names of persons when such amendment does not change the substance of the charge.... No indictment may be amended as to the substance of the offense charged.” Crim. P. 6.8(a) and (b). “The pobcy underlying this rule is to insure that an indictment reflects the wib of the grand jury.” People v. Campbell, 194 Colo. 451, 454, 573 P.2d 557, 558 (1978).
The United States Supreme Court in Russell v. United States, supra, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed.2d 240, 254 (1962), stated this same pobcy persuasively:
To abow the prosecutor, or the court to make a subsequent guess as to what was in the minds of the [members of the] grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guarantee of the intervention of a grand jury was designed to secure. For a defendant would then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.
The amendment of an indictment on a district attorney’s motion as to matters of substance has the effect of destroying the court’s jurisdiction with respect to the amended charge. Sawyer v. People, 173 Colo. 351, 478 P.2d 672 (1970). Such an amended indictment does not express the wib of the grand jury, but also is insufficient because it does not properly charge a crime. A deficient indictment does not subject the defendant to the jurisdiction of the court. See People v. Zupancic, 192 Colo. 231, 557 P.2d 1195 (1976); People v. Westendorf, 37 Colo.App. 111, 542 P.2d 1300 (1975).
Nevertheless, the People argue that the defendant has waived the jurisdiction of the court by his having entered a plea of nolo contendere to the amended charge. I reject the People’s waiver argument.
A jurisdictional requirement cannot be waived; neither the parties nor the court itself may confer jurisdiction on the court or waive jurisdiction, if the requirements prescribed by the General Assembly are not *1394met. Evans v. District Court, 194 Colo. 299, 572 P.2d 811 (1977); McCoy v. McCoy, 139 Colo. 105, 336 P.2d 302 (1959); People v. Mueller, 851 P.2d 211, 214 (Colo.App.1992) (“Any action taken by a court when it lacks jurisdiction is a nullity.”).
Contrary to the People’s argument, in my view, jurisdictional defects are not waived by a plea of nolo contendere. See People v. Gamer, 187 Colo. 294, 530 P.2d 496 (1975); People v. Roberts, 668 P.2d 977 (Colo.App.1983). See also United States v. Heller, 579 F.2d 990, 998 (6th Cir.1978)(even upon plea of [no contest], “defendant can question the jurisdiction of the court to render judgment, raising the issue of the sufficiency of the indictment.”).
A plea of nolo contendere is equivalent to a guilty plea, People v. Carpenter, 709 P.2d 72 (Colo.App.1985), and a voluntary guilty plea waives only non-jurisdictional defenses. People v. Carroll, — P.2d —, 1996 WL 350877 (ColoApp. No. 94CA1777, June 27, 1996); People v. Joseph, 920 P.2d 850 (Colo.App.1995).
Thus, in my view, the majority’s rationale related to defendant’s right to a lesser non-included offense here is not persuasive.
Because it inappropriately amended a state grand jury indictment, the court deprived itself of jurisdiction in this case. Accordingly, it is anomalous indeed for this court to sanction entry of a plea before a court that lacks jurisdiction over the charging document. Furthermore, there were alternatives available to the prosecution and the court to effectuate a plea bargain other than to render the indictment insufficient by improperly tampering with it.
Because I conclude that the trial court acted outside of its jurisdiction and rendered the indictment void as to the amended count to which defendant entered a plea, I would have us not consider defendant’s other contentions.
Accordingly, I would reverse the judgment and remand the cause with directions to vacate the conviction and the sentence imposed and to reinstate the original indictment. Alternatively, because no jeopardy attaches to an indictment defective in substance, People v. Thimmes, 643 P.2d 780 (Colo.App.1981), defendant could be charged, on remand, by any appropriate and sufficient pleading.