Brown v. District Court In and For First Judicial Dist., Jefferson County, 27558

• Decision Date: 19 September 1977
• Docket Number: No. 27558,27558
• Citation: 569 P.2d 1390
• Parties: Nolan L. BROWN, District Attorney In and For the First Judicial District, County of Jefferson, State of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the FIRST JUDICIAL DISTRICT, COUNTY OF JEFFERSON, State of Colorado, and the Honorable George G. Priest, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 1390

569 P.2d 1390

194 Colo. 45

Nolan L. BROWN, District Attorney In and For the First

Judicial District, County of Jefferson, State of

Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the FIRST JUDICIAL DISTRICT,

COUNTY OF JEFFERSON, State of Colorado, and the

Honorable George G. Priest, one of the

Judges thereof, Respondents.

No. 27558.

Supreme Court of Colorado, En Banc.

Sept. 19, 1977.

Nolan L. Brown, Dist. Atty., Robert M. Kelly, Deputy Dist. Atty., Golden, for petitioner.

Donald A. Brenner, Denver, for respondents.

HODGES, Justice.

In this original proceeding, the district attorney seeks relief in the nature of prohibition against an order of the respondent district court. We ordered respondent district court to show cause why its order granting defendant Gary Lee Swingle a preliminary hearing, on a count seeking a mandatory sentence for violent crime, should not be quashed. The respondent has answered. We hold that this defendant is not entitled to a preliminary hearing on this count. Therefore, we make the rule absolute.

Defendant Swingle was first charged with aggravated robbery, in violation of section 18-4-302, C.R.S. 1973. After a preliminary hearing, probable cause was found to exist and the defendant was bound over to the district court for trial. Approximately one month later, the district attorney filed a second count seeking the mandatory sentence for violent crime as provided in section 16-11-309, C.R.S. 1973 (1976 Supp.). The respondent district court granted the defendant's motion for a preliminary hearing on this second count, and it is this ruling which is at issue here.

Section 16-1-104(14), C.R.S. 1973, defines preliminary hearing as

"a hearing . . . to determine if there is probable cause to believe that an offense has been committed and that the person charged committed it." (Emphasis added.)

It is obvious that the legislature intended the violent crimes sentencing statute to be just that a sentencing provision, and not an offense. A preliminary hearing may be had with regard to offenses only. See Maestas v. District Court, Colo., 541 P.2d 889 (1975).

Although this sentencing statute requires a specific finding of fact as to whether the accused used or possessed and threatened to use a deadly weapon during the commission of the crime, it does not create a substantive offense. The application of the statute is triggered only after a defendant has been found guilty of the substantive crime, and the special...