Mills v. County Court of Arapahoe County

Full title: Harold James Mills v. County Court of Arapahoe County, and The Honorable…

Court: Supreme Court of Colorado. En Banc

Date published: Jun 25, 1973

511 P.2d 477 (Colo. 1973)

511 P.2d 477

Opinion

No. 26000

Decided June 25, 1973.

Original proceeding. Petition in nature of mandamus to require trial court to permit filing of and to rule upon application for probation. Rule to show cause issued.

Rule Made Absolute

1. PROBATION — Determination — Trial Court — Appellate Proceedings. A trial court has jurisdiction to determine the question of probation following appellate proceedings.

2. Application — Proper — Conviction — Misdemeanor — Statute. Under C.R.S. 1963, 39-16-3, any person convicted of a misdemeanor is entitled to make application for probation; hence, petitioner who was convicted of misdemeanors was entitled to make application for probation.

Original Proceeding

Albert Cohen, for petitioner.

Robert R. Gallagher, Jr., District Attorney, Jerrie F. Eckelberger, Deputy, for respondent.

MR. JUSTICE DAY delivered the opinion of the Court.

This is an original proceeding.

Petitioner, defendant Harold James Mills, was convicted in Arapahoe County Court on two misdemeanor counts (driving while under the influence, and leaving the scene of an accident) and received two concurrent ninety-day sentences in the Arapahoe county jail.

Appeal to the district court was dismissed for lack of jurisdiction because the notice of appeal was not timely filed pursuant to Crim. P. 37. On appeal to this court, we affirmed. Mills v. People, 181 Colo. 168, 509 P.2d 594.

After completion of the appellate procedures, petitioner sought to apply for probation. His request for leave to file was denied. The petition herein is for a writ in the nature of mandamus to require the trial court to permit the filing of and to rule upon the application for probation. Response to the rule to show cause has been filed, and the matter is now at issue.

[1,2] We have held the court has jurisdiction to determine the question of probation following appellate proceedings. Coffey v. County Court of Jefferson County, 177 Colo. 81, 492 P.2d 839. By statute, C.R.S. 1963, 39-16-3, any person convicted of a misdemeanor is entitled to make application for probation.

The rule is made absolute.

MR. JUSTICE HODGES does not participate.