Opinion
No. 25657
Decided November 20, 1972.
Original proceeding in the nature of prohibition brought by petitioner seeking to prohibit further proceedings against him by respondent district court under the "short check" law. Rule to show cause issued.
Rule Discharged
1. STATUTES — "Bad Check" Law — Substitute — Insufficient Funds — "No Account" Check Statute — Repeal — Negative — New Statute — Unconstitutional. Newer statute, the so-called "bad check" law, (C.R.S. 1963, 40-14-20, as amended by Colo. Sess. Laws 1970, ch. 48) was intended as a substitute for both the "short check" statute (1965 Perm. Supp., C.R.S. 1963, 40-14-20(6) and the "no account" check statute (1965 Perm. Supp., 40-14-10); and the legislature did not intend the repeal of either to be effective if the newer statute were held to be unconstitutional.
2. SHORT CHECK — Insufficient Funds — Charged — Violation — "Bad Check" Law — Unconstitutional — Statutes. Even though petitioner's motion to vacate his guilty plea to violation of so-called "bad check" law (C.R.S 1963 40-14-20, as amended by Colo. Sess. Laws 1970, ch. 48) was granted after law was declared unconstitutional, nevertheless, petitioner thereafter could be charged with violation of "short check" statute (1965 Perm. Supp., C.R.S. 1963, 40-14-20(6)), which prohibits making, drawing or uttering check to procure thing of value, knowing that maker, drawer, or payor had insufficient funds for payment of check.
Original Proceeding
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Edward L. Kirkwood, Deputy, for petitioner.
Jarvis W. Seccombe, District Attorney, Frederic B. Rodgers, Deputy, Joseph T. Carroll, Deputy, for respondents.
On the basis of a check delivered for payment on September 14, 1970, the petitioner Robert E. White was charged with a felony violation of the "bad check" law, C.R.S. 1963, 40-14-20, as amended by Colo. Sess. Laws 1970, ch. 48. This statute (herein designated as the newer statute) repealed and re-enacted with amendments C.R.S. 1963, 40-14-20, as amended (herein designated as the older statute). The petitioner entered a plea of guilty to the charge and was sentenced to a term in the penitentiary.
After the newer statute was declared unconstitutional in People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972), the petitioner's motion to vacate his guilty plea was granted. Thereafter, on the basis of the same check, he was charged with a violation of the older statute. The petitioner's motion for a dismissal of the charge was denied by the respondent district court, and he brought this original proceeding seeking to prohibit further proceedings against him by that court. We issued a rule to show cause.
[1,2] The petitioner here raises the identical arguments raised by the petitioner in White v. District Court, 180 Colo. 147, 503 P.2d 340. The only substantive distinction between this case and White v. District Court, supra, is that the petitioner here was charged under 1965 Perm. Supp., C.R.S. 1963, 40-14-20(6) following vacation of his plea, whereas in White v. District Court, supra, the petitioner was charged under 1965 Perm. Supp., C.R.S. 1963 40-14-10. This distinction does not alter our view that White v. District Court, supra, is determinative of the issues presented here. It seems clear that the newer statute was a substitute for both 1965 Perm. Supp., C.R.S. 1963, 40-14-20(6) and 40-14-10, and that the legislature did not intend the repeal of either statute to be effective if the newer statute were held to be unconstitutional.
Rule discharged.
MR. CHIEF JUSTICE PRINGLE does not participate.