629 P.2d 1078 | Colo. | 1981
In this original proceeding, the petitioner Kenneth L. Stephenson requests a writ in the nature of prohibition and mandamus restraining the respondent district court from revoking the petitioner’s personal recognizance bond. We issued a rule to show cause, and now make that rule absolute.
On October 30, 1980, the day after his arrest, the petitioner appeared in custody before a judge of the county court.
Although the county court specified that the recognizance bond would be continued
In response to our rule, the attorney for the respondent court concedes, based on the transcript of the county court hearings
In Lucero v. District Court, we held that a trial court exceeded its jurisdiction in revoking the defendant’s bail when it found probable cause to believe that the defendant committed first-degree murder. We observed, however, that our holding “should not be construed to negate in any way the right of the court to revoke or modify bail which has been previously granted after notice is given to the defendant.” Id at 71, 523 P.2d at 957. A trial court may revoke or modify bail, but in doing so, it must comply with the provisions of sections 16-4-101, et seq., C.R.S.1973.
“(1) Upon application by the district attorney or the defendant, the court before which the proceeding is pending may increase or decrease the amount of bail, may require additional security for a bond, or ’ may dispense with security theretofore provided, or may alter any condition of the bond.
(2) Reasonable notice of an application for modification of a bond by the defendant shall be given to the district attorney.
(3) Reasonable notice of application for modification of bond by the district attorney shall be given to the defendant, except as provided in subsection (4) of this section.
(4) Upon verified application by the district attorney stating facts or circumstances constituting a breach or a threatened breach of any of the conditions of the bond, the court may issue a warrant commanding any peace officer to bring the defendant without unnecessary delay before the court for a hearing on the matters set forth in the application. At the conclusion of the hearing, the court*1080 may enter an order authorized by subsection (1) of this section.”
The statute makes no provision for a trial court, sua sponte, to modify a defendant’s bond once that bond has been executed. After the bond is executed, it is not incumbent upon the defendant to affirmatively show the validity of his bond. The petitioner here made every court appearance while he was on bond, and the district attorney had not filed an application for modification of bond.
Rule made absolute.
. The case was assigned County Court Case No. F80F588.
. Sections 12-22-404 and 12-22-412(3), C.R.S. 1973.
. The respondent district court fixed bail in the amount of $4,000 when the information was filed. Section 16-4-103(1), C.R.S.1973, provides:
“At the first appearance of a person in custody before a judge of a court of record, the amount of bail and type of bond shall be fixed by the judge, unless an indictment, information, or complaint has theretofore been filed and the amount of bail and type of bond has been fixed upon the return of the indictment, or filing of the information or complaint, in which event the propriety of the bond shall be subject to reappraisal....”
.Section 16-4-106, C.R.S.1973, provides:
“Once a bond has been executed and the person released from custody thereon, whether a charge is then pending or is thereafter filed or transferred to a court of competent jurisdiction, the original bond shall continue in effect until final disposition of the case in the trial court.... Any bond continued pursuant to this section is subject to the provisions of section 16-4-107.”
. Neither the district attorney nor the petitioner had filed a motion requesting a change in the amount of bail or type of bond.
. The respondent court did not have the transcript of the county court proceedings before him.
.The provisions of Crim.P. 46 are identical in relevant part to the provisions of sections 16-4-101, et seq., C.R.S.1973.
. In representing the respondent trial court in this original proceeding, the district attorney argues that the original personal recognizance bond was improper because the district attorney did not consent to it as required by section 16-4-105(l)(n), C.R.S.1973, • and People v. Sanders, 185 Colo. 153, 522 P.2d 735 (1974). We do not reach this issue because it was not the basis of the respondent court’s ruling that the petitioner had not posted a valid bond, and it was not the subject of an application for a modification of bond by the district attorney although on October 29, 1980, and again at the hearing on April 9, 1981, the district attorney noted that the petitioner had a felony conviction within the past five years, and that release of the petitioner on his personal recognizance alone was improper. See sections 16-4-104(l)(a) and 16-4-105(l)(n), C.R.S.1973.