Bruce v. Leo
| Decision Date | 08 March 1954 |
| Docket Number | 17082,Nos. 17081,s. 17081 |
| Citation | 129 Colo. 129,267 P.2d 1014 |
| Parties | BRUCE, Secretary of State, v. LEO. BRUCE, Secretary of State, v. HOLESWORTH. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Charles M. Soller, Asst. Atty. Gen., for plaintiff in error.
John M. Boyle, Mack Witty, Salida, for defendant in error Flora Leo.
The two cases included in the title are identical and have been consolidated for disposition; however, defendant in error Holesworth, not desiring to contest or participate further, his name has been omitted from the discussions of counsel for defendant.
The case as presented involves construction of the liquor code of 1935, and, as amended is now to be found as S.L. '41, p. 517, § 1-s 20(a). Under this code plaintiff in error, Secretary of State, is charged with the administrative duties connected with, and the enforcement of, the code, and is designated as state licensing authority with power to grant, suspend and revoke licenses for the manufacture and sale of alcoholic liquors.
About January 1, 1952, defendants in error, Leo and Holesworth, were duly licensed to sell alcoholic liquors in the State of Colorado. Leo was issued a hotel and restaurant license entitling her to sell alcoholic liquors by the drink, and Holesworth was issued a retail liquor store license entitling him to sell alcoholic liquor in sealed containers. On March 17, 1952, the district attorney of Chaffee county, where defendants in error's businesses were located, filed separate criminal informations in the district court of that county charging each defendant with the unlawful sale of alcoholic liquor to minors. Upon arraignment, both defendants entered separate pleas of nolo contendere to the charges, and on March 31 thereafter, the court entered its order and judgment, similar in both cases, as follows:
'This Cause coming on for hearing on this 31st day of March, A. D. 1952, and the Defendant, Flora Leo, appearing by her attorneys of record, John M. Boyle and Mack Witty, and having previously entered a plea of nolo contendere to the charge as stated in the Information as filed herein on the 17th day of March, A. D. 1952, and the Probation Officer having reported his findings herein recommending that a minimum fine be imposed, and that the liquor license not be suspended, and further reporting that the character, reputation and standing of the Defendant in the community is excellent, and that he has heard nothing to the contrary, and the Deputy District Attorney, William S. Rush, agreeing that leniency is in order, and the sum of Fifty Dollars ($50.00) and costs having been paid into the registry of this Court;
'It Is Therefore Ordered, Adjudged and Decreed That the plea of nolo contendere be accepted in this case and the case be removed from the docket.
'Done and signed in open Court this 31st day of March, A. D. 1952.'
On April 2 and 7, each defendant paid the fine so assessed and the costs into the registry of the court.
The court record of the criminal prosecution is not before us; however, the stipulations and the record of the present case discloses an oddity in the procedure of the criminal case in that the only judgment shown is that of an acceptance of the plea of nolo contendere and is silent as to the penalty imposed in the sum of fifty dollars. This so-called order and judgment is dated March 31, 1952; however, the stipulation shows that defendant paid fifty dollars and costs into the registry of the court on April 2, 1952. Since all the parties have treated this order as a judgment, we will so accept it for the purposes of this case.
On April 21, 1952, the then Secretary of State issued and had served upon both defendants an order to show cause and notice of hearing. The substance of the order appears in the record; however, the full text thereof does not appear, but is quoted in the brief of defendants in error and not objected to by plaintiff in error, and is as follows:
'State of Colorado
'George J. Baker
'Secretary of State and Ex-Officio State Licensing Authority
'State of Colorado
'City and County of Denver} SS:
'In the Matter of Complaint in re: Flora Leo
'dba Leo's Cafe and Bar
'128 West 1st Street
'Salida, Colorado
Order to Show Cause and Notice of Hearing
'Whereas it has been made to appear to the Secretary of State of the State of Colorado, as Ex-Officio State Licensing Authority, that you have violated the law and/or the rules and regulations of the State Licensing Authority governing your permit in the following particulars:
'It has been made to appear that you were found guilty of a violation of a liquor law in a Court of Record, same being the District Court, Chaffee County, Colorado.
'Section 25, para. (c), Article 2 of the Colorado Liquor Code of 1935 provides that 'No license provided by this Article shall be issued to or held by any person who has been convicted of a felony or of any violation of any liquor law in any federal or state court of record in the state of Colorado.'
'Now Therefore, you are hereby ordered to appear before me at my office in the State Capitol Building, Denver, Colorado, on Monday, the Fifth day of May, A. D. 1952, at the hour of 10 o'clock A. M. or as soon thereafter as you can be heard, to show cause why your said license above described should not be suspended or revoked as by law provided.
'It is Further Ordered, that the license be and hereby is suspended from this date for a period not exceeding 15 days from the date hereof, or until further order herein within said period.
'It is Further Ordered, that a copy of this order and notice shall be mailed or delivered to the above named licensee.
'In Witness Whereof, I have hereunto set my hand and seal of my office this Twenty-First day of April A. D. 1952.
'(Seal)
Geo. J. Baker
'George J. Baker
'Secretary of State and Ex-Officio State Licensing Authority.'
Defendants in error, on May 2, 1952, filed their complaints, which constitute the basis of this action, where it was admitted that they had pleaded...
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Western Colorado Power Co. v. Public Utilities Commission
...it is not only the right but the duty of an appellate court to determine the issues, regardless of interim construction. Bruce v. Leo, 129 Colo. 129, 267 P.2d 1014; Reserve Life Insurance Company, Dallas, Texas, v. Frank-father, 123 Colo. 77, 225 P.2d 1035, 39 A.L.R.2d 146; Golden v. People......
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U.S. v. Brzoticky
...have considered the consequences of a Nolo response in People ex rel. Atty. Gen. v. Edison, 100 Colo. 574, 69 P.2d 246; Bruce v. Leo, 129 Colo. 129, 267 P.2d 1014; Lacey v. People, 166 Colo. 152, 442 P.2d 402; and Reynolds v. People, 471 P.2d 417 (Colo.). In the two earlier cases the court ......
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Sokoloff v. Saxbe
...fallback position that a conviction entered upon a nolo plea assumes the characteristics of the plea itself. See Bruce v. Leo, 129 Colo. 129, 267 P.2d 1014, 1017 (1954). But the effect of a nolo plea is not governed entirely by logic; if it were, the plea might be abolished 'because indubit......
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People v. Goodwin
...concluded that it was not, based upon its interpretation of Lacey v. People, 166 Colo. 152, 442 P.2d 402 (1968); Bruce v. Leo, 129 Colo. 129, 267 P.2d 1014 (1954); and People v. Edison, 100 Colo. 574, 69 P.2d 246 (1937). Consequently, the court of appeals vacated the defendant's sentence an......