Chavez v. District Court for the 17th Judicial District , 1982 Colo. LEXIS 654 ( 1982 )

ROVIRA, Justice,

dissenting:

I respectfully dissent.

The majority holds that the district court acted in excess of its jurisdiction because no preliminary hearing was held in the county court. Given the limited role of the county court in holding preliminary hearings in felony complaint cases, I do not agree.

The preliminary hearing is a screening device which requires the People to establish probable cause to support the charges leveled against the accused. People v. Johnson, 618 P.2d 262 (Colo.1980); McDonald v. District Court, 195 Colo. 159, 576 P.2d 169 (1978). It provides the accused an opportunity to challenge the sufficiency of the People’s evidence at an early stage of the proceedings. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). Further, the preliminary hearing provides a procedure whereby one accused without probable cause may be relieved from the burden of a complaint within a reasonable period.

However, when an individual accused of a felony is brought before a county court for a preliminary hearing and the court determines that there is no probable cause to support the charges, the People are not precluded from filing a direct information in the district court charging the accused with the same offense. Crim.P. 5(a)(4)(V). Thus, a finding of no probable cause in the county court results in the dismissal of the charges and the discharge of the defendant. Crim.P. 5(a)(4)(IV). It does not protect the accused from further prosecution in the district court.

In harmony with the foregoing scheme, the district court may allow the People to file a direct information under certain circumstances. Crim.P. 7(c) provides that “The prosecuting attorney, with the consent of the court having trial jurisdiction, may file a direct information if: ... (2) A preliminary hearing was held in the county court and the accused person was discharged; .... ”

In the present case, the county court refused to grant another continuance and dismissed the charges filed against the petitioner because the People were not prepared to proceed on the scheduled hearing date. Therefore, no preliminary hearing was held in the county court. The only question concerns the effect of the court’s dismissal of the charges without hearing the evidence.

I believe that the dismissal of the charges should be given the same effect as a finding of no probable cause. The accused is then entitled to have the charges dismissed and to be discharged, but the People are not precluded from seeking the consent of the district court to file a direct information.

This result affords the accused all of the protections provided by the county court preliminary hearing, but at the same time recognizes the limited nature of the county court’s determination. To rule otherwise would result in a situation where the People would be better advised to present little or no competent evidence, and risk a finding of no probable cause, than to admit to being unprepared and request that the court grant a continuance. The majority’s ruling gives too much weight to the county court’s refusal to grant the People’s request for a continuance.

Applying a sanction of dismissal against the People which results in their being foreclosed from requesting permission of the district court to file a direct information, when no like sanction applies if the People fail to establish probable cause at a preliminary hearing, elevates form over substance.

HODGES, C. J., and LEE, J., join in this dissent.