Opinion
No. 95CA1658
March 6, 1997 Petition for Rehearing DENIED April 10, 1997
Appeal from the District Court of the City and County of Denver Honorable Robert S. Hyatt, Judge No. 87DR3113
ORDER AFFIRMED AND CAUSE REMANDED WITH DIRECTIONS
No Appearance for Appellee.
Jeffrey E. Veigel, Lakewood, Colorado, for Appellant.
Miles R. Blount (father) appeals the judgment finding him in contempt for failure to pay child support. We affirm, but remand for clarification of father's entitlement to good time credits.
In the permanent orders entered in 1988, father was ordered to pay child support in the amount of $206 per month to Cynthia I. Helmich (mother) for the benefit of their child. Thereafter, mother requested that father be held in contempt for failure to pay child support, alleging that he was in arrears in the approximate amount of $4,000.
Both parties appeared pro se at the contempt hearing and testified briefly. The trial court found that father had paid very little child support in the preceding two years, even though a "tremendous amount of money ha[d] gone through [father's] business" during part of that time. Father's refusal to pay child support, despite his ability to do so, was deemed a willful violation of the court's order, and therefore, the court found that father's conduct was offensive to the authority and dignity of the court.
The court found father guilty of contempt and entered the following sentence:
The sentence is six months in the Denver County Jail. No weekend release. No work release. No furloughs. No release of any kind.
Father was immediately jailed on the day of the hearing. He paid the arrearages five days later but was not released from jail until he obtained an appeal bond.
I.
Father first contends that the contempt order cannot stand because the district attorney was not notified of the proceeding. We disagree.
Section 18-1-1002, C.R.S. (1996 Cum. Supp.), effective July 1, 1994, provides that:
Before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the district of the court where the proceedings are to be heard and the district attorney for the district of the court where the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.
Father argues that, because the proceeding at issue here was one of criminal contempt, the statute requires that the district attorney be notified of the proceeding, and the failure to give such notice here deprived the court of jurisdiction to conduct the contempt hearing and impose sanctions.
While the General Assembly may limit the jurisdiction of a court to act, no statute will be held to limit court power unless the limitation is explicit from the language of the statute. Nguyen v. Swedish Medical Center, 890 P.2d 255 (Colo.App. 1995).
Thus, language in a statute requiring that a particular procedure be followed does not amount to a jurisdictional requirement unless it is clear that the General Assembly chose to make it so. See Regional Transportation District v. Lopez, 916 P.2d 1187 (Colo. 1996); see also People v. Wortham, 928 P.2d 771 (Colo.App. 1996) (court's failure to observe time limits for submission of psychiatrists' reports under Sex Offenders Act does not deprive court of jurisdiction); cf. People v. Naulls, ___ P.2d ___ (Colo.App. No. 95CA0009, May 16, 1996) (statute providing that court shall not "any longer have jurisdiction" if procedure not followed imposes jurisdictional requirement).
Here, § 18-1-1002 requires that notice of the proceedings be given "before a contempt proceeding is heard." This language does not evince a legislative intent to deprive the trial court of jurisdiction if this requirement is not fulfilled. Accordingly, we reject defendant's assertion that the failure to comply with this statute deprived the trial court of jurisdiction.
Instead, we undertake the inquiry appropriate to cases involving a non-jurisdictional failure to comply with a procedural requirement: whether the noncompliance prejudiced a party's substantial rights. See Mitchek v. Department of Revenue, 911 P.2d 715 (Colo.App. 1996) (non-jurisdictional procedural error does not mandate reversal of driver's license revocation unless error prejudiced licensee's substantial rights); People v. Wortham, supra (no reversible error in failure to observe time limitations where defendant "ultimately received all benefits" afforded under statute). Upon conducting such inquiry, we perceive no prejudice to defendant.
A review of the legislative history of § 18-1-1002 reveals that the statute was enacted not to protect defendants, but rather to protect the state's interest in prosecuting offenders. The General Assembly apparently enacted this statute in response to People v. Allen, 868 P.2d 379 (Colo. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 129, 130 L.Ed.2d 73 (1994), proceedings on remand, ___ P.2d ___ (Colo.App. Nos. 90CA1007 and 90CA1263, November 7, 1996). Because the legislative subcommittee felt the Allen decision made it "unclear" whether contempt triggered double jeopardy concerns, this amendment was to enable the district attorney to receive notice of criminal contempt proceedings and also to argue for contempt sanctions. See Hearings on H.B. 1126-94 before the Subcommittee of the Senate Judiciary Committee, 59th General Assembly, Second Regular Session (May 9, 1994).
We conclude, therefore, that the statutory purpose of § 18-1-1002 is to provide notice to prosecutors in cases in which contempt proceedings may trigger double jeopardy concerns. The amendment was not intended as a protection for defendants in a contempt proceeding.
Significantly, father has not suggested, let alone demonstrated, that he has been prejudiced in any way by the failure to give notice to the district attorney. On the record before us, there is no indication that the district attorney would have opposed imposition of the contempt order or argued for a lesser sanction than that ordered by the trial court. Nor is there any indication in the record or contention by father that his own double jeopardy rights were in any way implicated here as a result of the lack of notice to the district attorney.
Finally, we note that father did not object to the lack of notice or request a continuance prior to or at the hearing on the contempt issue. Under these circumstances, father does not have a basis to claim prejudice or surprise. See People v. Swain, 43 Colo. App. 343, 607 P.2d 396 (1980).
Accordingly, any error in the failure to give notice to the district attorney did not affect the substantial rights of father and is properly viewed as harmless. See C.R.C.P. 61.
II.
However, we do agree with father's contention that he is entitled to have good time credited to his sentence and that, therefore, his release date should be determined accordingly.
Every person who is sentenced to and imprisoned in any county jail and who performs the duties or work assigned is entitled to a deduction from the length of his sentence. Sections 17-26-109 and 17-26-115, C.R.S. (1986 Repl. Vol. 8A).
The good time provisions apply to all county prisoners, see People v. T.O., 696 P.2d 811 (Colo. 1985), and the trial court is without authority to sentence a defendant to "flat time," thereby depriving him or her of the statutory right to earn good time credit toward the reduction of the sentence. Hemphill v. District Court, 197 Colo. 431, 593 P.2d 972 (1979). Furthermore, the court is not free to disregard a specific legislative mandate relating to sentencing, even though another alternative might appear better suited to the circumstances of the case. People v. Widhalm, 642 P.2d 498 (Colo. 1982).
Our conclusion comports with rulings of courts from other jurisdictions that have considered the issue. See State v. Payne, 612 So.2d 153 (La.App. 1992) (trial court erred in ordering that defendant's sentence for direct contempt be served as "flat time," without allowing the accumulation of good time); Ex parte Suter, 920 S.W.2d 685 (Tex.App. 1995) (for contempt sentence for failure to pay child support, trial court had no authority to set an ending date on sentence because that denies the contemnor his right to be considered for statutory good time); see also People v. Russell, 237 Ill. App.3d 310, 178 Ill. Dec. 164, 604 N.E.2d 420 (1992) and Ex parte Tanner, 904 S.W.2d 202 (Tex.App. 1995).
Accordingly, we hold that a prisoner incarcerated in a county jail for punitive contempt is entitled to the benefits of good time credits, if earned. Here, father asserts that he was denied application of the good time statutes because the trial court told the sheriff that all contempt sentences were "flat time" and that the good time credit was unavailable. To the extent the language of the order purports to limit "good time" credit, it is beyond the power of the court to do so; therefore, on remand, the trial court should clarify the order so as not to preclude the allowance of good time credit.
The contempt order is affirmed, and the cause is remanded for further proceedings in accordance with this opinion.
CHIEF JUDGE STERNBERG concurs.
JUDGE CRISWELL concurs in part and dissents in part.