People v. Hollis, 81CA0882

Decision Date30 June 1983
Docket NumberNo. 81CA0882,81CA0882
Citation670 P.2d 441
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kay HOLLIS, Defendant-Appellant. . III
CourtColorado Court of Appeals

J.D. MacFarlane, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick Sol. Gen., Valerie J. McNevin-Petersen, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Jody Sorenson Theis, Deputy State Public Defender, Denver, for defendant-appellant.

STERNBERG, Judge.

The question raised by this appeal is whether the rule or statute prevails in the case of conflict between the provisions of a Supreme Court rule and a statute as to the number of peremptory challenges allowed a defendant in a criminal trial. Concluding that the right to peremptory challenges is substantive, and not merely procedural, we hold that the statute controls.

In the trial of this case, defendant, Kay Hollis, was convicted of second-degree assault following a jury trial. When the jury was empaneled, on July 15, 1981, the rule, Crim.P. 24(d), allowed a defendant 10 peremptory challenges. Until July 1, 1981, the pertinent statute, § 16-10-104, C.R.S.1973 (1978 Repl.Vol. 8) had also allowed 10 peremptory challenges. Effective on that date, however, the statute was amended to reduce the number of such challenges to five. See § 16-10-104, C.R.S.1973 (1982 Cum.Supp.). Only on July 16, 1981, after the jury was empaneled in this case, was a similar amendment to Crim.P. 24(d) effective, bringing the rule into conformity with the statute. During this trial the statute was applied and Hollis was not allowed the 10 peremptory challenges permitted by the rule. Her appeal is premised on the contention that Crim.P. 24(d) controlled. We disagree and affirm the conviction.

The concept of separation of powers requires that the co-equal branches of government, the executive, legislative, and judicial, exercise only their own powers and not usurp the powers of another co-equal branch of government. Colo. Const., Art. III. By Colo. Const., Art. VI, Sec. 21, the Supreme Court is given power to "make and promulgate rules governing the administration of all courts [and is directed to] make and promulgate rules governing practice and procedure in civil and criminal cases ...."

Thus, a statute governing procedural matters in criminal cases which conflicts with a rule promulgated by the Supreme Court would be a legislative invasion of the court's rule-making powers. People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978). Conversely, in substantive matters, a statutory enactment of the legislative branch prevails over a conflicting Supreme Court rule. See McKenna, supra. Consequently, when a statute and rule conflict, the conflict is resolved by determining whether the matter affected is "substantive" or "procedural."

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18 cases
  • People v. Wiedemer
    • United States
    • Colorado Supreme Court
    • May 10, 1993
    ...are substantive and are therefore appropriate subjects for legislation. McKenna, 196 Colo. at 371-72, 585 P.2d at 277; People v. Hollis, 670 P.2d 441, 442 (Colo.App.1983). We noted in McKenna that legislative policy and judicial rule making powers may overlap to some extent as long as there......
  • State v. Arbaugh
    • United States
    • West Virginia Supreme Court
    • March 2, 2004
    ...substantive matters, a statutory enactment of the legislative branch prevails over a conflicting Supreme Court rule." People v. Hollis, 670 P.2d 441, 442 (Colo.Ct.App.1983) (citations omitted). See also In re Daniel H., 133 N.M. 630, 634, 68 P.3d 176, 180 (Ct.App.2003) (recognizing "the est......
  • Louk v. Cormier
    • United States
    • West Virginia Supreme Court
    • July 1, 2005
    ...powers.'" State v. Arbaugh, 215 W.Va. 132, 138, 595 S.E.2d 289, 295 (2004) (Davis, J., dissenting) (quoting People v. Hollis, 670 P.2d 441, 442 (Colo.Ct.App.1983)). See also Syl. pt. 5, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999) ("The West Virginia Rules of Criminal Procedure are......
  • People v. Thompson
    • United States
    • Colorado Court of Appeals
    • May 4, 2017
    ...and judicial, exercise only their own powers and not usurp the powers of another co-equal branch of government." People v. Hollis , 670 P.2d 441, 442 (Colo. App. 1983). That said, "the judicial branch of government possesses the inherent power to determine and compel payment of those sums o......
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