Zaharia v. County Court In and For Jefferson County
| Decision Date | 10 November 1983 |
| Docket Number | No. 83CA1149,83CA1149 |
| Parties | Sally Reyes ZAHARIA, Plaintiff-Appellant, v. The COUNTY COURT In and For the COUNTY OF JEFFERSON, and the Honorable Kim H. Goldberger, one of its Judges, Defendants-Appellees. . I |
| Court | Colorado Court of Appeals |
Barbara B. Hughes, Vincent Todd, Littleton, for plaintiff-appellant.
Mary Risko, Golden, for defendants-appellees.
This appeal of a C.R.C.P. 106 proceeding comes before the court at this time on motions by both parties. Plaintiff has moved for a stay of the district court proceedings pursuant to C.A.R. 8 and for permission to proceed in forma pauperis. Defendants have filed a response in opposition to both of plaintiff's motions, and a motion to dismiss, to which plaintiff has responded. On August 26, 1983, we granted plaintiff's motion to stay the district court proceedings which we now reconsider.
We first consider, however, the motion to dismiss because the disposition of this issue will affect the rulings on the other motions.
At a preliminary hearing the county court found sufficient probable cause to bind plaintiff over for trial on certain criminal charges. A writ of prohibition, pursuant to C.R.C.P. 106, was sought by plaintiff in the district court alleging that there was no competent non-hearsay evidence to support the county court's finding of probable cause, and that the county court had abused its discretion in failing to allow plaintiff to recall a witness at the preliminary hearing. The district court found that it did not have jurisdiction to review the finding of probable cause by the county court, but that it did have jurisdiction to determine whether the county court had abused its discretion in refusing to allow plaintiff to recall a witness. The district court then held that the county court had not abused its discretion in this regard. This appeal followed.
Whether this court has jurisdiction to hear the appeal, or any part thereof, depends upon whether the matters presented were properly before the district court in a C.R.C.P. 106 proceeding. See § 13-4-102(1), C.R.S.1973; Thomas v. County Court, 198 Colo. 87, 596 P.2d 768 (1979).
In its motion to dismiss, defendants argue that a district court cannot properly review a county court's finding of probable cause in a C.R.C.P. 106 proceeding. We agree.
People v. District Court, 652 P.2d 582 (Colo.1982) is dispositive. There, the Supreme Court held that the district court cannot properly review a county court's factual finding of probable cause. In an appeal from a C.R.C.P. 106 proceeding in the district court, this court is in the same position as the district court, concerning the review of the county court proceeding. See County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1978), appeal after remand, 198 Colo. 6, 595 P.2d 237 (1979). Therefore, because the issue concerning the county court's ruling as to probable cause is not subject to review by the district court, it is likewise not subject to review by this court.
Defendants also argue in the motion to dismiss that the district court did not have any jurisdiction, under C.R.C.P. 106, to determine whether the county court abused its discretion by refusing to allow the recall of a witness at the preliminary hearing. We disagree.
Although a district court cannot review the county court's factual findings of probable cause, the recalling of a witness does not involve this factual determination, but involves the procedural aspects of the preliminary hearing. Where, as here, a lower court has allegedly abused its discretion by failing to follow the necessary procedures in conducting a preliminary hearing, a writ of prohibition may issue. See Kuypers v. District Court, 188 Colo. 332, ...
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