People v. Swazo

• Decision Date: 23 August 1976
• Docket Number: No. 27184,27184
• Citation: 553 P.2d 782,191 Colo. 425
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Anthony SWAZO and Eddie Swazo, Jr., Defendants-Appellees.
• Court: Colorado Supreme Court

Page 782

553 P.2d 782

191 Colo. 425

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Anthony SWAZO and Eddie Swazo, Jr., Defendants-Appellees.

No. 27184.

Supreme Court of Colorado, En Banc.

Aug. 23, 1976.

Dale Tooley, Dist. Atty., Brooke Wunnicke, Thomas P. Casey, Chief Appellate Deputy Dist. Attys., Lucy Marsh Yee, Deputy Dist. Atty., Denver, for plaintiff-appellant.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lawrence J. Schoenwald, Deputy State Public Defender, Denver, for defendant-appellee Authony Swazo.

Holm, Willis & Dill, P.C., H. Alan Dill, Denver, for defendant-appellee Eddie Swazo, Jr.

DAY, Justice.

The district attorney, pursuant to statutory authority re questions of law, appeals from an order of the Denver district court dismissing several felony charges against the defendants. We reverse and order the charges reinstated.

The defendants were originally charged by felony complaint with second degree burglary, felony theft, and conspiracy to commit second degree burglary and theft. After a preliminary hearing in the Denver county court, the charges were dismissed for lack of probable cause.

Subsequently the prosecuting attorney asked leave to file in district court the same charges by direct information. The parties stipulated that District Judge Leonard Plank consented to the filing, although he was not informed of the prior proceedings and the county court dismissal. After the information was filed, Judge Plank signed the same and fixed bail at $5,000 for each of the defendants.

Thereafter the case was assigned to another division of the district court presided over by Judge Joseph R. Quinn. The defendants filed a motion to dismiss, and following arguments by counsel, Judge Quinn made the following finding and ruling:

'In this particular case the Court would find there was not an informed consent given by Judge Plank to the filing of this information. Judge Plank was at no time advised that the defendants had been through a preliminary hearing, and there had been, in fact, a judicial determination of lack of probable cause. It was the duty of the District Attorney when he requested leave of the District Court to set forth these matters to Judge Plank so Judge Plank could make an informed judgment as to whether or not this case should be placed on the docket for trial proceedings or should not be allowed to be filed because of the then existing judicial determination of lack of probable cause. . . .

'The Court concludes that there was not consent within the meaning of (Crim.P. 7). It was not an informed consent, and the Judge was not properly advised of the factual predicate on which the information was based. . . .'

Defendants' motions to dismiss were granted.

The court was apparently persuaded that its action in dismissing the case was mandated by People v. Burggraf, 36 Colo.App. 137, 536 P.2d 48. That case is distinguishable in that the direct information was filed without leave of court, whereas in the case at bar consent of court was actually obtained.

Therefore the only issue herein is whether the district attorney must...