People v. Bartsch, 74--591
| Decision Date | 23 October 1975 |
| Docket Number | No. 74--591,74--591 |
| Citation | 37 Colo.App. 52,543 P.2d 1273 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jimmy Wynn BARTSCH, Defendant, and his bondsman, William Kearns, d/b/a Brook Bail Bonds, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Floyd Marks, Dist. Atty. Brian T. McCauley, Deputy Dist. Atty., Commerce City, for plaintiff-appellee.
Lewis E. Eagan, Charles P. Miller, James J. Scott, Aurora, for defendant-appellant.
William Kearns, d/b/a Brook Bail Bonds (the bondsman), appeals from a $5,000 judgment entered against him on a bail bond forfeiture. We reverse.
On April 15, 1974, one Jimmy Wynn Bartsch was arrested on a county court complaint for aggravated robbery (§ 18--4--302, C.R.S.1973) allegedly committed on April 13. Bartsch was released from custody on the execution of a $5,000 recognizance bond by him as principal and by the bondsman as surety. The bond was designated as being issued relative to a charge of 'Armed Robbery,' but we assume it was intended as security for Bartsch's appearance to answer to the aggravated robbery charge.
Subsequently, the matter was bound over to the district court, and the bond was continued and transferred to that court. Pursuant to the bind-over order, a one-count information was filed against Bartsch for the aggravated robbery. He pled not guilty, and the matter was set for trial on September 11. The bond again was continued.
On the trial date, with the consent of Bartsch and leave of court, a second count of simple robbery (§ 18--4--301, C.R.S.1973) was added to the information. This charge contained the same fact allegations as the first count except that it did not include any averments about Bartsch being armed with a deadly weapon or concerning his intention, if resisted, to inflict serious injury upon his victim. The second count, simple robbery, is a lesser included offense within the charge of aggravated robbery. See People v. Reed, 180 Colo. 16, 502 P.2d 952.
The transcript and related minute order show that Bartsch pled guilty to the second count, that the court 'entered' and 'received' the plea, and that, on Bartsch's request, the court granted Bartsch leave to apply for probation. Although the minute order shows the bond was continued, no consent was sought or obtained from the bondsman for the continuation of the bond.
On October 24, 1974, Bartsch did not appear. The court declared the bond forfeited and directed that a citation issue to the bondsman requiring him to show cause why judgment should not enter against him on the bond. A bench warrant was issued for Bartsch's arrest. On November 21, the date set in the citation, when Bartsch still did not appear, judgment was entered against the bondsman in the amount of the bond.
On December 6, the bondsman filed a motion to set aside the judgment based on lack of written consent to continuation of the bond after the entry of the guilty plea. On December 12, the court denied the motion and stated:
'All bonds remain in effect until final determination of a case period, and the final determination means after judgment is entered as far as this court is concerned.'
The issue on this appeal is: Upon the entry by a criminal defendant of a plea of guilty to a lesser offense included within the original charge for which a bail bond has been posted, is the consent of the surety necessary for that bond to be continued?
The applicable statute is § 16--4--201, C.R.S.1973, which provides that:
(emphasis supplied)
Accordingly, the meaning of 'conviction' in the above statute is the key to resolving the above issue.
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