People v. Rotello, 86SA369
| Decision Date | 23 May 1988 |
| Docket Number | No. 86SA369,86SA369 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Ronald L. ROTELLO, Defendant-Appellee. |
| Court | Colorado Supreme Court |
James F. Smith, Dist. Atty., Steven L. Bernard, Chief Trial Deputy Brighton, for plaintiff-appellant.
Law Firm of Chris Melonakis, Chris Melonakis, Northglenn, for defendant-appellee.
The People appeal the denial of a request to file a direct information against Ronald L. Rotello in the Adams County District Court, charging Rotello with four counts of felony theft in violation of section 18-4-401, 8B C.R.S. (1986). We affirm.
In 1984, Rotello entered into a one-year lease with the Adams County Board of County Commissioners (board) to sell beer and soft drinks in the Waymire Community Building and the Outdoor Arena at the Adams County Regional Park Complex (complex). Under the lease, Rotello was granted the right to sell beer and soft drinks at the complex. In return, the lease called for Rotello to pay the board rent equal to nineteen percent of the gross income from the sale of beer and soft drinks at various events, to report this income to the board on the tenth day of each month, and to pay the board on the fifteenth day of each month. A second one-year lease was signed in 1985, which was similar to the 1984 lease except that Rotello was granted permission to sell wine and liquor in addition to beer and soft drinks, and the rent was raised from nineteen to twenty-two percent.
The Adams County District Attorney charged Rotello with four counts of felony theft in violation of section 18-4-401, 8B C.R.S. (1986), based on failure to report or underreporting of the amount of money owed to the board from the sale of beverages at the complex between January 1, 1984, and December 31, 1985. After holding a six-hour preliminary hearing in Adams County Court on July 29 and July 31, 1986, the county court concluded that Rotello's conduct created a debtor-creditor relationship but did not give rise to criminal liability. The county court dismissed the charges, holding that the People had failed to establish probable cause to believe that Rotello had committed the crime of felony theft.
The People then moved the district court for permission to file a direct information against Rotello pursuant to Crim.P. 7(c)(2). Following a hearing on September 19, 1986, the district court denied the motion to file a direct information. The People appealed directly to this court pursuant to section 16-12-102, 8A C.R.S. (1986).
The People contend that both the county court and the district court erred as a matter of law in concluding that a mere debtor-creditor relationship was established. We do not agree. Both courts applied the proper legal standard, weighed the competing interests appropriately, and reached the correct conclusion.
Filing a direct information in the district court pursuant to Crim.P. 7 is the exclusive remedy available to the prosecution when the county court dismisses a charge after holding a preliminary hearing. People v. Freiman, 657 P.2d 452, 454 (Colo.1983). Consent of the district court is required before the prosecution can file a direct information pursuant to Crim P. 7(c)(2), and we will not overrule a denial of such motion absent an abuse of discretion by the district court. People v. Sabell, 708 P.2d 463, 465 (Colo.1985); see also People v. Swazo, 191 Colo. 425, 427, 553 P.2d 782, 783 (1976). When exercising its discretion, the district court must balance the right of the district attorney to prosecute criminal cases against the need to protect the accused from discrimination and oppression. Sabell, 708 P.2d at 466; Borg v. District Court, 686 P.2d 781, 782-83 (Colo.1984); Freiman, 657 P.2d at 453. The prosecution is not required to produce new or additional evidence in order to file a direct information, although its presence or absence is one additional factor for the district court to consider. Holmes v. District Court, 668 P.2d 11, 14 (Colo.1983). Erroneous legal or factual conclusions will support a motion to file a direct information. See id.
Here the county court did not err in concluding that the People failed to produce evidence sufficient to induce a person of ordinary prudence and caution conscientiously to entertain a reasonable belief that the defendant committed the crimes charged. Rotello was charged with four counts of class 4 felony theft in violation of section 18-4-401(1), which states:
(1) A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and:
(a) Intends to deprive the other person permanently of the use or benefit of the thing of value; or
(b) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit; or
(c) Uses, conceals, or abandons the thing of value intending that such use, concealment, or abandonment will deprive the other person permanently of its use and benefit; or
(d) Demands any consideration to which he is not legally entitled as a condition of restoring the thing of value to the other person.
8B C.R.S. (1986) (emphasis added).
The money owed by Rotello to the board does not constitute "anything of value of another " within the meaning contemplated by section 18-4-401. This case is analogous to People v. Treat, ...
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