Corbett v. People

Full title: JOSEPH CORBETT, JR., ALIAS WALTER OSBORNE, v. THE PEOPLE OF THE STATE OF…

Court: Supreme Court of Colorado. En Banc

Date published: Mar 2, 1964

389 P.2d 853 (Colo. 1964)

389 P.2d 853

Opinion

No. 20,057.

Decided March 2, 1964.

Petition of counsel in Supreme Court for fees and expenses in prosecuting writ of error.

Petition Denied.

1. CRIMINAL LAW — Appeal and Error — Counsel Fees — Application — Where Made. Where it appears that no request for payment of counsel fees and out-of-pocket monies expended by counsel in prosecution of writ of error has ever been made in the trial court, and the trial court being the proper forum in which to request counsel to represent an indigent defendant for the purpose of suing out a writ of error, such form is the proper one in which to request fees and out-of-pocket expenditures in prosecuting a writ or error.

Petition for Attorneys' Fees and Costs.

Mr. WILLIAM H. ERICKSON, Mr. H. MALCOLM MACKAY, for plaintiff in error.

Mr. DUKE, W. DUNBAR, Attorney General, Mr. JOHN E. BUSH, Assistant, for defendant in error.

MR. JUSTICE PRINGLE delivered the opinion of the Court.

Plaintiff in error was convicted of murder and this Court affirmed the conviction and issued a remittitur to the trial court, Corbett v. People, 153 Colo. 457, 387 P.2d 409. During the course of the proceedings in this Court, counsel for the plaintiff in error filed a petition requesting us to direct the trial court to set a fee for their services to the plaintiff in error on the writ of error and to pay their out-of-pocket expenses incurred in presenting the writ of error. No action was taken by this Court on the petition and after the remittitur was issued counsel renewed their request that this Court direct the trial court to pay them a fee and their out-of-pocket expenses, or in the alternative, that this Court set a fee.

From the record presented before us, it appears that no request for payment of counsel fees for prosecuting the writ of error herein and the out-of-pocket monies expended thereon by counsel has ever been made in the trial court.

We have said that the trial court is the proper forum in which to request counsel to represent an indigent defendant for the purpose of suing out a writ of error, In Re Griffin's Petition, 152 Colo. 347, 382 P.2d 202, In Re Pigg's Petition, 152 Colo. 500, 384 P.2d 267, and the same principle is applicable to a request for attorney's fees and out-of-pocket expenditures on prosecuting the writ of error.

The petition is accordingly denied.