*1 20,995. No. George Priest, G. Altobella v. Honorable Donald County.

Judge Jefferson the District 585) (385 [2d] P. 8, 1963 Decided October petitioner. Messrs. Farcy & Bellinger, Tursi, Attorney, Rob- Mr. District J. Mr. Ronald Hardesty, respondent. Deputy, ert K. Willison, En Banc.' opinion Court. Moore delivered Justice

Mr. original proceeding. Altobella filed Donald This *2 petition alleged appeared his it he which was that respondent 1963, 3, before the on October district court pending as the in said court. defendant in a criminal case The action had trial on that theretofore been for set attorney On date. said Tursi entered a date Dale P. special appearance petitioner on for the behalf of sole purpose filing arguing requesting of a motion for the tinuance trial of the and a motion for change judge. alleged of It was further that the re- spondent judge acknowledged telegram receipt aof attorney Chicago from an that it was stated attorney said had been retained the to against charge engaged defend but that he was then Chicago appear in the of a case in and could not requested setting that the trial be vacated and the action be reset at the convenience of the alleged petition further that the court “errone- ously grant change judge, refused to the motion for of way disputing alleged petition, in no facts as showing any grounds disputing nor for the affidavits petition thereto.” affixed continues follows: as

“7. “That Court did then vacate the trial, ordered the appear setting Monday, to defendant on 7, October 1963, and did then with no notice to show cause, no charge grounds contempt, of no and over whatsoever, objection, find to be defendant sen- tencing days him to 90 forthwith, commence dispensed any right petition with defendant re-hearing or of execution, and denied bond. “8. petition frivolously

“That this is not filed, and that unless this Court takes immediate this matter, he shall be held without bail in violation of VI, Article Section the Constitution of the State of Colorado, Article 20 of the Constitution II, Section Consti- Colorado, the State of VIII Article tution of the United States.”

Upon petition this we issued a rule to show custody should not released from “judgment” contempt. following, The answer of contains with happened reference what on October 1963: appeared attorney record, “2. Defendant with special A. Dale Ciancio, Jr., counsel, Frank also with Mr. Ciancio had P. Tursi. advised pre- been to contact the Defendant in unable order spite pare trial, of the fact that the Defendant custody had been released from September or on bail on about 1963,and had at least month which one attorney to contact his of record. then re- Mr. Ciancio quested permission of the Court to withdraw as *3 request granted by Altobella, for was the Court. People jury ready At this panel time, were for trial, present, had been summoned and was all wit- People subpoenaed, nesses for the had been and were testify.” available to by respondent asserted

It is occa- that on two other prior delayed October 3, sions 1963, “had by dilatory delaying trial of his case The tactics.” following: answer contains the dilatory delaying

“5. In view the tactics of the contempt Altobella, Defendant Court found him in morning Court on the 1963, October 3, ninety days jail.” him to sentenced pursuing “delaying If in fact the unnecessarily requested and had tactics,” theretofore delay in the trial of the the court should have application required denied for continuance and proceed the case to trial. On 3, 1963, October defendant present, attorney in the action was his of record for a period present, substantial of time was and the case tried. A have been could- defendant who fails and appointed at the for trial neglects his case prepare for such been provided time time has although sufficient had at is cannot if the preparation, complain appearance time An who enters an appointed. appearance his of an accused cannot withdraw on behalf trial unless a on the set for day on behalf of defendant so, presumed and it the court do grants request good denied unless that such an will be application granted. it should shown how any a understand We are at loss to complete can law- of court for summary criminal case when a in a fully defendant imposed con- relation to that all that the record discloses with con- a motion a is that the defendant made tempt court grant. Respondent tinuance which the saw fit to such notion. authority has cited no far-fetched We know none. “This con

The answer contains statement, A occurred in Court.” tempt perti is, contempt?” nent “What The question undisputed committed facts us show no of court before court without sen summarily impose ninety-day facts. tence for of court under the admitted We direct attention to Pittman v. District in which a simi 149 Colo. somewhat attorneys lar situation was involved. In that case were manner summary employing “stalling” penalized said, tactics. This court alia: inter “We can of a conceive situation in which easily duct of obstruct- attorneys litigants unreasonably *4 a given appropriate in case would warrant ing progress action a which in a judge might result of court. If such conduct a contempt amounts committed in the court contempt direct the it handled but may summarily matter, as contempt the record with reference to the matter allegedly the must show with stituting contempt particularity sum- thus actually happened, matter is and if the what marily contempt mat- as a handled be handled it must ” * * * ter. “ * * * may be that v upon ^[*] # a citation show specific citation referred to some conduct contempt matters court, should not be held to abe transcript appear would us before do not develop justify however a different result. This adjudicated pure speculation. Contempt must matters proceedings appropriate appropriate proceedings. in No contempt this case.” conducted in have been hap- what record as to is no In the instant case there except nothing contents of pened; the before us there is pertinent allegations petition, are ad- of which the the “Contempt repeat cited We from mitted. the above adjudicated proceedings. appropriate matters must be appropriate proceedings been con- have No ducted in case.” opinion which contains

Another of this court recent pertinent announced directions to the instant action County Attorney Alamosa in and in District County Alamosa, v. District Court held 150 Colo. 271. It was there appear when criminal district failed who hearing, thereby causing incon- cases had been set summarily delay business, venience or could not be adjudged opinion From in that of court. quote following: case we “ * * * ques- apparent in the instant case it that the thus to willful intent tion whether there justice depends with the administration of interfere on hand facts which asserted the one whether are The answer of other are true or false. denied form of exhibits attached thereto has happened concerning outside matters which affidavits itself the answer court, thus petitioner was of which discloses that *5 presence take place found if did not guilty, any, of the we record this by the circumstances disclosed

“Under the court was without conclude that must that' contempt; adjudge petitioner to summarily not committed committed was allegedly fol- hearing, court; a notice and hence prerequi- necessary as were by specific findings, lowed finding petitioner any judgment site to court.” finding The judgment

The rule is made absolute. he is void of court to be in custody. from should be forthwith released Mr. Justice McWilliams dissents. dissenting: Justice McWilliams

Mr. dis- I find myself standpoint From a procedural and therefore majority Court, with the agreement I must dissent. Court, instituted in this original proceeding

In an Jefferson district court of Altobella alleges he adjudged on October County, days to ninety jail sentenced summarily of execution and a release and then denied a asked “that citation issue bond, accordingly committing judge], to the forthwith [the should him show cause commanding recognizance pending existing be released not matter.” It is observed that Alto- review of this final “final this Court did not ask for a in his petition bella — an order be re- only of the matter” that he review could be reviewed time as the matter leased, until such on merits. its Court commanded re- order

By appropriate seventy-two “why show cause within hours spondent said should prayer petition requested the relief (Emphasis supplied.) not granted.” Respondent filed within the time set asking petition answer, be dismissed for that the stated reason that Altobella committed to “contempt [that] occurred in *6 right punish Court”; that court “has an inherent . . . [Altobella] “is not forthwith”; and that Altobella occurring finding entitled to bail under a of within the of the court.” majority is on this state of of the record that the this Court do not order that Altobella “released” pending proceed “final matter,” review of the but rather forthwith to make “final review of the matter” judgment contempt. disagree “void” the I with this disposition of the matter. general rule is this Court that will not entertain

original proceedings adequate remedy is “where by Piper available writ of Court, error.” See v. District Colo. 364 P. 213. illustrative of fact As judgment subject by that a to review writ error, see Brown v. Amen, 147 Colo.

(2d) 735. adequate remedy

Hence, Altobella does have “an . . . by judgment available writ of error,” i.e., the of con- tempt subject review writ of and in error, such appellate proceeding undoubtedly would have right to seek a ninety-day jail of execution of his sentence ask bail be set. being

This I original true, am pro- disinclined in an ceeding pass and on the state of the record to on the represents merits of the sought by petition. relief not Altobella in his I would discharge prejudice, therefore the rule, without to the right through Altobella to seek review and relief writ or error.