Van Gundy v. O'Kane

• Decision Date: 29 February 1960
• Docket Number: No. 19257,19257
• Parties: Donald L. VAN GUNDY, Complainant, v. Bernard P. O'KANE, District Attorney of the First Judicial District of the State of Colorado, The County Court of Jefferson County, Colorado, and Roscoe Pile, Judge thereof, Respondents.
• Court: Colorado Supreme Court

Page 282

351 P.2d 282

142 Colo. 114

Donald L. VAN GUNDY, Complainant, v. Bernard P. O'KANE, District Attorney of the First Judicial District of the State of Colorado, The County Court of Jefferson County, Colorado, and Roscoe Pile, Judge thereof, Respondents.

No. 19257.

Supreme Court of Colorado, En Banc.

Feb. 29, 1960.

Elias J. Candell, Lakewood, for complainant.

Bernard P. O'Kane, Dist. Atty. in and for the First Judicial District, State of Colorado, Leonard L. Beal, Deputy Dist. Atty., Lakewood, for respondents.

SUTTON, Chief Justice.

Complainant seeks a writ in the nature of prohibition directed to the County Court of Jefferson County, Colorado, to stay his rearrest pending determination of this matter; to show cause why respondents should not be prohibited from proceeding with the prosecution in the county court; and to compel dismissal of the cause in that court for lack of jurisdiction. Following issuance of a rule to show cause, respondents filed their return and the matter is now at issue.

The basic facts are not in dispute. Complainant was arrested in July 1959 for alleged traffic violations, upon conviction of which his operator's license must be revoked. Subsequently, a complaint embracing these charges was filed in the Justice Court of Daniel J. Shannon, Justice of the Peace in Jefferson County. Complainant was released on bail, and was subsequently arraigned before the said Justice of the Peace, who received and entered his pleas of 'not guilty' to each charge and set a date for trial. Complainant appeared on the day set and demanded a trial by jury, whereupon Bernard P. O'Kane, District Attorney for the First Judicial District, made oral motion for a nolle prosequi in the justice court, with the consent and approval of the court, for the admitted purpose of commencing prosecution in another court of concurrent jurisdiction, viz., the County Court of Jefferson County. Thereafter, an identical complaint was filed in the County Court, and a warrant for Van Gundy's re-arrest issued. His 'motion to dismiss', filed in the county court and averring substantially the same grounds here urged, was denied by that court.

Complainant urges two separate grounds for the granting of the writ:

1. The nolle prosequi entered in the justice court did not contain the public statement required by C.R.S. '53, 39-7-10; and

2. That the entry of a nolle prosequi in the justice court for the admitted sole purpose of refiling the action in another court of concurrent jurisdiction did not relieve the justice court of jurisdiction so that another court might take jurisdiction of the cause.

Though the statute in question is mandatory and district attorneys are bound thereby, we will not at this time determine the first ground since complainant's second one fully sustains his position and is determinative of the matter.

Original jurisdiction, concurrent with county and district courts, is conferred upon justices of the peace in all cases of misdemeanor by C.R.S. '53, 79-15-3. C.R.S. '53, 79-15-4, provides that 'In all trials before justices of the peace for offenses within their jurisdiction, the defendant may demand a jury, * * *.'

No provision is to be found anywhere in the statutes authorizing the transfer from the justice court to the county court in cases where the state has initiated action in the justice court but later determines that it would be more desirable, ostensibly because a defendant had the audacity to demand a jury trial, to try the case in the county rather than the justice court.

In 117 A.L.R. 423 appears an annotation entitled 'Nolle prosequi or discontinuance of prosecution in one court and instituting new prosecution in another court of coordinate jurisdiction.' At page 424 it is stated in pertinent part:

'* * * the view finding the greater amount of judicial support is that the court which first acquired jurisdiction when a prosecution was commenced therein loses such jurisdiction by the entering of a nolle prosequi, and that thereafter another prosecution may be carried on in another court of co-ordinate jurisdiction. (Citing cases.)

* * *

* * *

'In other cases, however, the practice of nol-prossing an action in one court and instituting another prosecution in a court of co-ordinate jurisdiction has been condemned as resulting in a violation or evasion of a statute, or an attempt on the part of the district attorney to accomplish indirectly what could not be done directly, it being held that the court in which the subsequent prosecution was instituted did not acquire jurisdiction. State v. Milano (1916) 138 La. 989, 71 So. 131; Coleman v. State (1904) 83 Miss. 290, 35 So. 937, 64 L.R.A. 807, 1 Ann.Cas. 406. But see Rogers v. State (1912) 101 Miss. 847, 58 So. 536, infra.

'And the practice was condemned in United States v. Jones (1926) 7 Alaska 378, although it was there held that the second court acquired jurisdiction.'

United States v. Jones supra discusses the rationale behind the rules that have been developed:

'While the practice of initiating a criminal action in one court having jurisdiction, and dismissing it, and thereafter bringing the action in another court of concurrent jurisdiction for the same crime, is strongly to be condemned, yet there may be cases where the lack of evidence, or defect in the complaint, or other similar causes, would influence the prosecution to dismiss a criminal case pending before the justice court. To...