Opinion
No. 74-575
Decided May 20, 1975.
The People appealed from dismissal of felony complaint.
Affirmed
1. CRIMINAL LAW — Direct Information — Filing — District Court Probable Cause — Not Found — County Court — Preliminary Hearing. The rules of criminal procedure clearly provide for the filing of a direct information in the district court although probable cause has not been found in county court, and furthermore, after the filing of a direct information in the district court, either the People or the defendant may demand a preliminary hearing in that court even where there has been a dismissal of a felony complaint by the county court following a preliminary hearing on the same charge.
2. Preliminary Hearing — County Court — Defendant Discharged — Consent of District Court — Condition — District Court Filing. Under the rules of criminal procedure, where preliminary hearing is held in county court and the accused person discharged, the prosecuting attorney may file a direct information with the district court; however, consent by the district court to such a filing is a condition precedent thereto and without such consent there is no valid information before the court.
Appeal from the District Court of the County of Jefferson, Honorable George G. Priest, Judge.
Nolan L. Brown, District Attorney, James D. Zimmerman, Deputy District Attorney, for plaintiff-appellant.
Natalie S. Ellwood, Henry Ellwood, for defendant-appellee.
The People appeal from a judgment of the district court dismissing a felony complaint filed against defendant Carol L. Burggraf. We affirm.
On February 13, 1974, a felony complaint was filed in the county court of Jefferson County, charging defendant with unlawful possession of narcotic drugs, § 12-22-302, C.R.S. 1973. At a preliminary hearing the county court found that probable cause did not exist to show that the offense charged had been committed by the defendant and the case was dismissed. The county court continued the bond to May 17, 1974, to determine if there had been a refiling in the district court.
A felony information was filed in the district court on May 14, 1974, charging defendant with the same crime as charged in the county court. Defendant requested a preliminary hearing in the district court which was scheduled for July 15, 1974. Defendant failed to appear on that date, the court held that this absence constituted a waiver of the right to a preliminary hearing, and the case was continued to July 29, 1974, for the entry of a plea and the setting of a trial date. On July 29 the court on its own motion dismissed the case. The court reasoned that the Rules of Criminal Procedure and the statutes of Colorado do not contemplate giving the District Attorney a second opportunity to present evidence at a preliminary hearing to the district court when he has previously received an adverse ruling by a county court judge following a presentation of the same evidence at a preliminary hearing before the county court.
[1] The district court was correct in dismissing this case but not for the reason stated. The holding of the district court was incorrect since the Rules of Criminal Procedure clearly provide for the filing of a direct information in the district court where probable cause has not been found in the county court. Furthermore, after the filing of a direct information in the district court either the People or the defendant may demand a preliminary hearing in that court even where there has been a dismissal of a felony complaint by the county court following a preliminary hearing on the same charge. Crim. P. 5(a)(4)(V); Crim. P. 7(c)(2); Crim. P. 7(h). See People v. District Court, 183 Colo. 101, 515 P.2d 101.
[2] The case was properly dismissed, however, because the information was not properly filed in the district court. The record is quite clear that the district court never consented to the filing. Crim. P. 7(c) provides in part that where a preliminary hearing was held in the county court and the accused person discharged, the prosecuting attorney, "with the consent of the court having trial jurisdiction, may file a direct information . . . . " Consent to the filing is a condition precedent and without such consent there is no valid information before the court. Walker v. People, 22 Colo. 415, 45 P. 388. See Falgout v. People, 170 Colo. 32, 459 P.2d 572. In the Walker case the court was construing a statutory provision which was almost identical to our present Crim. P. 7(c). The court there said:
"To protect the rights of the citizen and guard him against oppression and malice, the legislature has made it necessary that a judicial order shall be obtained before a charge can be preferred, and the courts have no right to construe away or defeat this statutory provision."
The reasoning and purpose of the consent condition are the same under our current Rules of Criminal Procedure as they were under the old statute cited in Walker, supra.
Under the facts of this case an information could have been filed only after the trial court had exercised its discretion and given its consent. The district court not having consented to the filing, the present information is of no force and effect and its dismissal was thus correct.
Judgment affirmed.
JUDGE SMITH and JUDGE KELLY concur.