People v. District Court In and For Tenth Judicial Dist., 28181

• Decision Date: 30 October 1978
• Docket Number: No. 28181,28181
• Citation: 586 P.2d 1329
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the TENTH JUDICIAL DISTRICT, State of Colorado, and the Honorable Richard D. Robb, one of the District Judges in and for theTenth Judicial District, State of Colorado, Respondents.
• Court: Colorado Supreme Court

Page 1329

586 P.2d 1329

196 Colo. 420

The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the TENTH JUDICIAL DISTRICT State of Colorado, and the Honorable Richard D. Robb, one of the District Judges in and for theTenth Judicial District State of Colorado, Respondents.

No. 28181.

Supreme Court of Colorado, En Banc.

Oct. 30, 1978.

As Modified on Denial of Rehearing Dec. 18, 1978. En Banc.

J. E. Losavio, Jr., Dist. Atty., Amy S. Isaminger, Deputy Dist. Atty., Pueblo, for petitioner.

Richard D. Robb, pro se.

KELLEY, Justice.

The People, through the district attorney, requested an order from this court staying further proceedings in an action pending in the district court for the Tenth Judicial District. We issued a rule to show cause, which we now discharge.

On February 19, 1977, an indictment was returned against codefendants Charles and Darlene Corbett for three counts of child abuse. In May, Charles Corbett entered a plea of guilty to one count of child abuse and agreed to enter a guilty plea to a pending case of welfare fraud.

The district attorney and counsel for Darlene Corbett reached an agreement on May 15, 1977, in which it was agreed that she would also plead guilty to welfare fraud. The district attorney then filed a nolle prosequi on the child abuse counts against her. The plea arrangement was explained to the trial judge, who refused to permit a dismissal.

The People allege the district court is proceeding in excess of its jurisdiction and abusing its discretion by refusing to dismiss the child abuse action. The district attorney asserts that the trial court has only a limited power of review over the exercise of prosecutorial discretion. The People cite a number of cases interpreting Fed.R.Crim.P. 48(a), which is similar to our Crim.P. 48(a). ¹ Those cases substantially limit the court's power to deny a prosecutor's motion to dismiss.

Although pronouncements of the United States Court of Appeals are not binding on this court, the positions taken in United States v. Cowan, 524 F.2d 504 (5th Cir. 1975), and United States v. Ammidown, 162 U.S.App.D.C. 28, 497 F.2d 615 (1973), support the decision we reach here. Both courts spoke of the relative discretion of the prosecutor and the judge creating a balance of power. Thus, neither controls, and the goal of both is to ensure protection of the public interest.

In Turner v. District Court, 188 Colo. 146, 533 P.2d 498 (1975), under a different factual setting, this court found that the refusal of a trial court to grant a continuance requested by the prosecuting attorney did not constitute a limitation on prosecutorial discretion. In words applicable to the situation here, the court discussed the requirements of ...