Colorado § 16-5-205 - Informations - authority to file - indictments - warrants and summons.

§ 16-5-205. Informations - authority to file - indictments - warrants and summons.

(1) The prosecuting attorney may file an information in the court having jurisdiction over the offense charged, alleging that a person committed the criminal offense described therein. The court shall enter an order fixing the amount of bail, if the offense is bailable, and the amount of bail shall be endorsed upon any warrant issued for the arrest of the alleged offender. When a summons is issued instead of a warrant, no bail shall be fixed; except that, when a person is charged with an offense pursuant to section 42-2-138 (1)(d) or 42-4-1301 (1) or (2)(a), C.R.S., the court may enter an order fixing the amount of bail even if a summons is issued.

(2) Upon the return of an indictment by a grand jury, or the filing of an information, or the filing of a felony complaint in the county court, the prosecuting attorney shall request the court to order that a warrant shall issue for the arrest of the defendant, or that a summons shall issue and be served upon the defendant. If a warrant is requested upon an information or a felony complaint, the information or felony complaint must contain, or be accompanied by, a sworn written statement of facts establishing probable cause to believe that the criminal offense was committed as alleged by the person for whom the warrant is sought. In lieu of such sworn statement, the information or felony complaint may be supplemented by sworn testimony of such facts. Such testimony must be transcribed and then signed under oath by the witness giving the testimony.

(3) Except as otherwise provided in this article, any information, indictment, felony complaint, warrant, or summons shall comply with the requirements of applicable rules of criminal procedure adopted by the supreme court of Colorado. Any procedures connected with service of summons, the arrest and detention of an alleged offender upon a warrant, and the duties of the arresting officer relating to the summons or arrest, not specifically set forth in this code, shall be as provided by the applicable rules of criminal procedure adopted by the supreme court of Colorado.

(4) Repealed.

Source: L. 72: R&RE, p. 215, § 1. C.R.S. 1963: § 39-5-205. L. 77: (4) added, p. 856, § 2, effective June 21. L. 89: (4) amended, p. 779, § 7, effective July 1. L. 91: (4) amended, p. 402, § 2, effective June 6. L. 97: (4) repealed, p. 315, § 2, effective October 1. L. 2008: (1) amended, p. 785, § 1, effective July 1.

ANNOTATION

Law reviews. For article, "By Leave of Court First Had", see 8 Dicta 10 (May, 1931). For article, "Criminal Procedure in Colorado — A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950). For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963).

Annotator's note. Since § 16-5-205 is similar to repealed § 39-4-1, C.R.S. 1963, § 39-4-1, CRS 53, and CSA, C. 48, § 454, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

This section provides concurrent methods of proceeding against a criminal defendant. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969).

In each method there are provisions to protect the accused against discrimination and oppression on the part of the district attorney. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969).

Constitutionality. Provision allowing prosecutions upon information was held not unconstitutional when surrounded by proper regulations and safeguards and made applicable to all persons and communities in the state without discrimination. In re Dolph, 17 Colo. 35, 28 P. 470 (1891).

Provision requiring a proper and sufficient affidavit supporting information before warrant of arrest can issue was held constitutionally valid as not opposed to § 7 of art. II, Colo. Const., the provision of the bill of rights relating to warrants. Ratcliff v. People, 22 Colo. 75, 43 P. 553 (1896).

The portion of this section which authorizes initiation of criminal proceedings by direct information is not a violation of due process or equal protection of the law. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969).

No constitutional provision forbids indictments and informations as concurrent remedies when surrounded by proper regulations and safeguards. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969).

This section is a valid exercise by the general assembly of its power pursuant to § 23, of art. II, Colo. Const. de'Sha v. Reed, 194 Colo. 367, 572 P.2d 821 (1977).

This section applies to the extent of any conflict with Crim. P. 6.7. de'Sha v. Reed, 194 Colo. 367, 572 P.2d 821 (1977).

Information provision pari materia with system of prosecution. The legislative acts providing for the prosecution of crimes, naming the parties who shall prosecute, and prescribing the means and methods to be pursued are all parts of the same system and must be construed in pari materia. People v. Gibson, 53 Colo. 231, 125 P. 531 (1912).

It is general both in form and substance and of uniform operation throughout the state. In re Dolph, 17 Colo. 35, 28 P. 470 (1891).

Neither the prosecuting attorney nor any other officer is authorized to exercise an arbitrary discretion in the matter of instituting criminal prosecutions. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969).

Discretion is given to the prosecuting attorney to determine whether in any given case an information ought or ought not to be filed. He is the official possessed of the power and charged with the duty to accuse of crime by information in like manner as the grand jury is in cases by indictment. Stainer v. San Luis Valley Land & Mining Co., 166 F. 220 (8th Cir. 1908).

Complaining witness or victim of crime has no control over case, since he is not a party to it he can neither require prosecution of the case nor its dismissal. People v. Lucero, 623 P.2d 424 (Colo. App. 1980).

Preliminary hearing unnecessary before filing information. It is not necessary in order to vest power in the prosecuting attorney to file an information that there shall be a preliminary hearing and commitment. Holt v. People, 23 Colo. 1, 45 P. 374 (1896).

There is no procedure for dismissing a felony complaint without prejudice. Once the filing of a felony complaint in county court is dismissed, the prosecution must either obtain a grand jury indictment or file an information directly in the district court. People v. Williams, 987 P.2d 232 (Colo. 1999).

Determination of probable cause after arrest. Where insufficient information was presented to the court at the time of the filing of the information, which was sufficiently verified by a police officer, probable cause could be determined after the arrest. People v. Mundt, 38 Colo. App. 331, 561 P.2d 1272 (1976).

Applied in People v. Read, 132 Colo. 390, 288 P.2d 347 (1955); People v. Rice, 40 Colo. App. 357, 579 P.2d 647 (1978).