Holland v. McAuliffe, 17544
| Decision Date | 25 July 1955 |
| Docket Number | No. 17544,17544 |
| Citation | 286 P.2d 1107,132 Colo. 170 |
| Parties | Hubert HOLLAND, Plaintiff in Error, v. Gerald E. McAULIFFE, as Judge of the Municipal Court in and for the City and County of Denver, Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
E. F. Conly, Denver, for plaintiff in error.
John C. Banks, Joseph E. Newman, and Brian H. Goral, Denver, for defendant in error.
An ordinance of the City and County of Denver, known as Ordinance No. 233, Series of 1953, enacted by the city council on the 16th day of November 1953, relating to granting power to the municipal court to suspend fines or sentences on condition, including the power of probation in cases involving violations of the municipal ordinances, is here the subject of an attack from all four sides as well as the middle.
This review concerns a judgment of the superior court of the City and County of Denver which had granted a writ of certiorari against defendant in error as judge of the municipal court to review the court's action in the disposition of an alleged offense by plaintiff in error of driving an automobile under suspension, operating and driving without an operator's license. On hearing, the superior court quashed the writ of certiorari and in due course this writ of error was obtained.
Holland, plaintiff in error, was defendant in the municipal court on September 11, 1953, where he was sentenced for the violations herein mentioned, consisting of $150 fine and sixty-day jail sentence, and $50 fine and thirty-day jail sentence, respectively. Purporting to act under section 154 of the revised municipal code of the City and County of Denver, being Ordinance No. 250 of the Series of 1950, the court suspended the jail sentence and $100 of the fines imposed on condition that defendant 'refrain from driving any motor vehicle for one year from date.' More than four months thereafter, and on January 28, 1954, purporting to act under the ordinance here in question, amended effective November 21, 1953, the municipal court issued its warrant for the arrest of defendant for an alleged breach of the conditional suspension. The breach claimed was that defendant had, on January 7, 1954, in Adams county, driven an automobile. Learning of the issuance of the warrant, defendant voluntarily presented himself to the municipal court on February 8, 1954, and was admitted to bond for appearance on March 17 for hearing. At the hearing the municipal court, acting under the ordinance here under attack, vacated the suspension; reinstated the original penalties; modified the original sentence to the end that the thirty-day jail sentence should be served concurrently with the sixty-day jail sentence; and then denied defendant's application to appeal such sentence.
Being denied the right of appeal, defendant, on the 20th day of March, 1954, filed a complaint in the superior court alleging generally the facts herein stated, also alleging that the municipal judge, defendant in error, had exceeded his jurisdiction as such judge in the for the City and County of Denver, in that the condition he attempted to impose contained no territorial or jurisdictional limitations and was an usurpation of the function of the motor vehicle department of the State of Colorado; further, that the judgment of March 17, 1954 was a retroactive application of the ordinance of November 21, 1953, and in any event was appealable under the statutes of the State of Colorado; it also was alleged that plaintiff had no plain, speedy or adequate remedy; and prayed the court to issue a citation prohibiting the judge of the municipal court from proceeding further in connection with the order by virtue of such judgment until the further notice of the court.
Citation was issued directing the municipal judge to show cause why the relief requested should not be allowed; directing that he proceed no further in connection with the judgments relating to plaintiff; and continue the bond given by defendant as effective during the pendency of the action. The files, referred to as the record, of the municipal court were certified to the superior court, and the municipal judge, represented by the city attorney's office, filed a motion to quash the complaint, purporting to be a petition for a writ of certiorari. The grounds of this motion are to the effect that certiorari will not lie except for want of jurisdiction or a manifest abuse of discretion; that the petitioner had in no way shown lack of jurisdiction or abuse of discretion; that he was denied a right of appeal from a final judgment as distinguished from the execution of a judgment; that respondent judge, exercising the inherent right of judicial leniency in the nature of probation, suspended the jail sentence and part of the fine on the condition that petitioner not drive an automobile for a period of one year; that petitioner, under the law, had ten days in which he could perfect an appeal from the conviction, sentence, fine and suspension of sentence and fine; that he failed and neglected to take such appeal; and that he is not now entitled to the issuance of the extraordinary writ of certiorari.
The applicable parts of the ordinance here under attack are as follows:
'1. Mitigation of Punishment; Probation. If the court shall determine that there are circumstances in mitigation of punishment prescribed by law, or that the end of justice would be best served by granting probation to the defendant, the court shall have the power in its discretion, in lieu of probation, to place the defendant on conditional suspension. Said suspension shall be made only in open court and may be made in whole or in part with or without conditions. Whenever conditions are made, they shall be placed in writing by the Judge and prescribed by the Clerk of the Municipal Court for a period of five (5) years. The Clerk of the Municipal Court shall cause a copy of said conditions to be transmitted to the Chief to Police to keep on permanent file as a part of the subject's record for a period of five (5) years. There shall be no limitation in the nature of the conditions, except that they be lawful and that the conditions shall not extend beyond a two year period. For the purpose of maintaining permanent records of conditional suspension, a defendant, before he may accept a conditional suspension, shall be required to give his fingerprints to the police department.
'2. Police Control of Probationers. It shall be the duty of the Chief of Police, or his agent, and the City Attorney, or his duly appointed assistant, to inform the Court of all breach of conditions.
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...is an indispensable prerequisite.' (Emphasis supplied.) Recent expression of this philosophy is found in the case of Holland v. McAuliffe, 132 Colo. 170, 286 P.2d 1107, 1109, in which this court said that 'summary procedure in police court cases is countenanced from the standpoint of Expedi......
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