SENATE BILL 98008
BY SENATORS Wells and Arnold;
also REPRESENTATIVES Adkins, Epps, Hefley, and Tool.
CONCERNING THE ELIMINATION OF PRELIMINARY HEARINGS
IN CERTAIN CLASSES OF FELONIES.
Be it enacted by the General Assembly of the State
of Colorado:
SECTION 1. 165301
(1), Colorado Revised Statutes, is amended to read:
165301. Preliminary hearing
or waiver dispositional hearing.
(1) (a) Every person accused of a CLASS 1, 2,
OR 3 felony by direct information or felony complaint has the
right to demand and receive a preliminary hearing within a reasonable
time to determine whether probable cause exists to believe that
the offense charged in the information or felony complaint was
committed by the defendant. IN ADDITION, ONLY THOSE PERSONS ACCUSED
OF A CLASS 4, 5, OR 6 FELONY BY DIRECT INFORMATION OR FELONY COMPLAINT
WHICH FELONY REQUIRES MANDATORY SENTENCING OR IS A CRIME OF VIOLENCE
AS DEFINED IN SECTION 1611309 OR IS A SEXUAL OFFENSE
UNDER PART 4 OF ARTICLE 3 OF TITLE 18, C.R.S., SHALL HAVE THE
RIGHT TO DEMAND AND RECEIVE A PRELIMINARY HEARING WITHIN A REASONABLE
TIME TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT
THE OFFENSE CHARGED IN THE INFORMATION OR FELONY COMPLAINT WAS
COMMITTED BY THE DEFENDANT. The procedure to be followed in asserting
the right to a preliminary hearing and the time within which demand
therefor must be made, as well as the time within which the hearing,
if demanded, shall be had, shall be as provided by applicable
rule of the supreme court of Colorado. A failure to observe and
substantially comply with such rule shall be deemed a waiver of
this right to a preliminary hearing.
(b) (I) NO PERSON ACCUSED OF A CLASS
4, 5, OR 6 FELONY BY DIRECT INFORMATION OR FELONY COMPLAINT, EXCEPT
THOSE WHICH REQUIRE MANDATORY SENTENCING OR WHICH ARE CRIMES OF
VIOLENCE AS DEFINED IN SECTION 1611309 OR WHICH ARE
SEXUAL OFFENSES UNDER PART 4 OF ARTICLE 3 OF TITLE 18, C.R.S.,
SHALL HAVE THE RIGHT TO DEMAND OR RECEIVE A PRELIMINARY HEARING;
EXCEPT THAT SUCH PERSON SHALL PARTICIPATE IN A DISPOSITIONAL HEARING
FOR THE PURPOSES OF CASE EVALUATION AND POTENTIAL RESOLUTION.
(II) ANY DEFENDANT ACCUSED OF A CLASS
4, 5, OR 6 FELONY WHO IS NOT OTHERWISE ENTITLED TO A PRELIMINARY
HEARING PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH (b), MAY
DEMAND AND SHALL RECEIVE A PRELIMINARY HEARING WITHIN A REASONABLE
TIME PURSUANT TO PARAGRAPH (a) OF THIS SUBSECTION (1), IF THE
DEFENDANT IS IN CUSTODY; EXCEPT THAT, UPON MOTION OF EITHER PARTY,
THE COURT SHALL VACATE THE PRELIMINARY HEARING IF THERE IS A REASONABLE
SHOWING THAT THE DEFENDANT HAS BEEN RELEASED FROM CUSTODY PRIOR
TO THE PRELIMINARY HEARING.
(III) THE CHIEF JUSTICE OF THE COLORADO
SUPREME COURT IS ENCOURAGED TO PROMULGATE RULES DEFINING THE TERM
"DISPOSITIONAL HEARING" FOR PURPOSES OF THIS PARAGRAPH
(b), SECTION 181404 (2), C.R.S., AND SECTION 192705
(1.5), C.R.S.
SECTION 2. 181404,
Colorado Revised Statutes, is amended to read:
181404. Preliminary hearing
or waiver dispositional hearing.
(1) Every person accused of a CLASS 1, 2, OR 3 felony by direct
information or felony complaint has the right to demand and receive
a preliminary hearing within a reasonable time to determine whether
probable cause exists to believe that the offense charged in the
information has been committed by the defendant. IN ADDITION,
ONLY THOSE PERSONS ACCUSED OF A CLASS 4, 5, OR 6 FELONY BY DIRECT
INFORMATION OR FELONY COMPLAINT WHICH FELONY REQUIRES MANDATORY
SENTENCING OR IS A CRIME OF VIOLENCE AS DEFINED IN SECTION 1611309,
C.R.S., OR IS A SEXUAL OFFENSE UNDER PART 4 OF ARTICLE 3 OF THIS
TITLE, SHALL HAVE THE RIGHT TO DEMAND AND RECEIVE A PRELIMINARY
HEARING WITHIN A REASONABLE TIME TO DETERMINE WHETHER PROBABLE
CAUSE EXISTS TO BELIEVE THAT THE OFFENSE CHARGED IN THE INFORMATION
OR FELONY COMPLAINT WAS COMMITTED BY THE DEFENDANT. The procedure
to be followed in asserting the right to a preliminary hearing,
and the time within which demand therefor must be made, as well
as the time within which the hearing, if demanded, shall be had,
shall be as provided by rule of the supreme court of the state
of Colorado. A failure to observe and substantially comply with
such rule is a waiver of the right to a preliminary hearing.
(2) (a) NO PERSON ACCUSED OF A CLASS
4, 5, OR 6 FELONY BY DIRECT INFORMATION OR FELONY COMPLAINT, EXCEPT
THOSE WHICH REQUIRE MANDATORY SENTENCING OR WHICH ARE CRIMES OF
VIOLENCE AS DEFINED IN SECTION 1611309, C.R.S., OR
WHICH ARE SEXUAL OFFENSES UNDER PART 4 OF ARTICLE 3 OF THIS TITLE,
SHALL HAVE THE RIGHT TO DEMAND OR RECEIVE A PRELIMINARY HEARING;
EXCEPT THAT SUCH PERSON SHALL PARTICIPATE IN A DISPOSITIONAL HEARING
FOR THE PURPOSES OF CASE EVALUATION AND POTENTIAL RESOLUTION.
(b) ANY DEFENDANT ACCUSED OF A CLASS 4,
5, OR 6 FELONY WHO IS NOT OTHERWISE ENTITLED TO A PRELIMINARY
HEARING PURSUANT TO PARAGRAPH (a) OF THIS SUBSECTION (2), MAY
DEMAND AND SHALL RECEIVE A PRELIMINARY HEARING WITHIN A REASONABLE
TIME PURSUANT TO SUBSECTION (1) OF THIS SECTION, IF THE DEFENDANT
IS IN CUSTODY; EXCEPT THAT, UPON MOTION OF EITHER PARTY, THE COURT
SHALL VACATE THE PRELIMINARY HEARING IF THERE IS A REASONABLE
SHOWING THAT THE DEFENDANT HAS BEEN RELEASED FROM CUSTODY PRIOR
TO THE PRELIMINARY HEARING.
SECTION 3. The
introductory portion to 192705 (1), Colorado Revised
Statutes, is amended, and the said 192705 is further
amended BY THE ADDITION OF A NEW SUBSECTION, to read:
192705. Preliminary hearing
dispositional hearing. (1) The
district attorney or a juvenile who is accused in a petition of
a delinquent act that constitutes a CLASS 1, 2, OR 3 felony may
demand and receive a preliminary hearing to determine if there
is probable cause to believe that the delinquent act alleged in
the petition was committed by the juvenile. IN ADDITION, THE
DISTRICT ATTORNEY OR A JUVENILE WHO IS ACCUSED IN A PETITION OF
ONLY THOSE DELINQUENT ACTS THAT CONSTITUTE CLASS 4, 5, OR 6 FELONIES
WHICH FELONIES REQUIRE MANDATORY SENTENCING OR WHICH CONSTITUTE
CRIMES OF VIOLENCE AS DEFINED IN SECTION 1611309,
C.R.S., OR WHICH CONSTITUTE SEXUAL OFFENSES UNDER PART 4 OF ARTICLE
3 OF TITLE 18, C.R.S., MAY DEMAND AND RECEIVE A PRELIMINARY HEARING
TO DETERMINE IF THERE IS PROBABLE CAUSE TO BELIEVE THAT THE DELINQUENT
ACT ALLEGED IN THE PETITION WAS COMMITTED BY THE JUVENILE. A
preliminary hearing may be heard by a judge of the juvenile court
or by a magistrate and shall be conducted as follows:
(1.5) (a) THE DISTRICT ATTORNEY AND
THE JUVENILE WHO IS ACCUSED IN A PETITION OF A DELINQUENT ACT
THAT CONSTITUTES A CLASS 4, 5, OR 6 FELONY, EXCEPT THOSE THAT
REQUIRE MANDATORY SENTENCING OR WHICH CONSTITUTE CRIMES OF VIOLENCE
AS DEFINED IN SECTION 1611309, C.R.S., OR WHICH CONSTITUTE
SEXUAL OFFENSES UNDER PART 4 OF ARTICLE 3 OF TITLE 18, C.R.S.,
SHALL NOT HAVE THE RIGHT TO DEMAND OR RECEIVE A PRELIMINARY HEARING
BUT SHALL PARTICIPATE IN A DISPOSITIONAL HEARING FOR THE PURPOSES
OF CASE EVALUATION AND POTENTIAL RESOLUTION. SUCH DISPOSITIONAL
HEARING MAY BE HEARD BY A JUDGE OF THE JUVENILE COURT OR BY A
MAGISTRATE.
(b) ANY JUVENILE ACCUSED OF A CLASS 4,
5, OR 6 FELONY WHO IS NOT OTHERWISE ENTITLED TO A PRELIMINARY
HEARING PURSUANT TO PARAGRAPH (a) OF THIS SUBSECTION (1.5), MAY
DEMAND AND SHALL RECEIVE A PRELIMINARY HEARING WITHIN A REASONABLE
TIME PURSUANT TO SUBSECTION (1) OF THIS SECTION, IF THE JUVENILE
IS IN CUSTODY; EXCEPT THAT, UPON MOTION OF EITHER PARTY, THE COURT
SHALL VACATE THE PRELIMINARY HEARING IF THERE IS A REASONABLE
SHOWING THAT THE JUVENILE HAS BEEN RELEASED FROM CUSTODY PRIOR
TO THE PRELIMINARY HEARING.
SECTION 4. 136106
(1) (b), Colorado Revised Statutes, is amended to read:
136106. Original criminal
jurisdiction. (1) The county
court shall have concurrent original jurisdiction with the district
court in the following criminal matters:
(b) The issuance of warrants, the conduct
of preliminary examinations, THE CONDUCT OF DISPOSITIONAL HEARINGS
PURSUANT TO SECTION 165301 (1), C.R.S., AND SECTION
181404 (1), C.R.S.,the issuance of bindover orders,
and the admission to bail in felonies and misdemeanors.
SECTION 5. Effective
date applicability. This act shall take
effect July 1, 1998, and shall apply to offenses committed on
or after said date.
SECTION 6. Safety
clause. The general assembly hereby finds, determines, and
declares that this act is necessary for the immediate preservation
of the public peace, health, and safety.
____________________________ ____________________________
Tom Norton Charles E. Berry
PRESIDENT OF SPEAKER OF THE HOUSE
THE SENATE OF REPRESENTATIVES
____________________________ ____________________________
Patricia K. Dicks Judith M. Rodrigue
ASSISTANT SECRETARY OF CHIEF CLERK OF THE HOUSE
THE SENATE OF REPRESENTATIVES
APPROVED________________________________________
_________________________________________
Roy Romer
GOVERNOR OF THE STATE
OF COLORADO