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People v. Brothers.

2021 COA 109. No. 21CA0282.  Criminal Law—Preliminary Hearing—Timeliness.

August 12, 2021

Defendant was stopped for a traffic violation and an officer searched his car. During the search, the officer seized methamphetamine, marijuana, drug paraphernalia, driver’s licenses belonging to other people, and counterfeit money. Charges were filed and defendant was released on a personal recognizance bond. Defendant failed to appear at a hearing and was later arrested on a warrant for failure to appear. Defendant appeared in court and requested a preliminary hearing immediately upon the appointment of defense counsel. At the preliminary hearing, the People stated that they were unable to proceed. Defense counsel thus asked the court to rule that the People had failed to establish probable cause for the level 4 drug felonies and the class 6 felony and requested dismissal of those charges and four habitual criminal sentence enhancers. The court granted defendant’s requests, leaving charges of a misdemeanor, a drug petty offense, and a traffic infraction.

On appeal, the People contended that because defendant was released from custody on a personal recognizance bond after appearing in court following the filing of charges, he was thereafter precluded from demanding a preliminary hearing. As was the case here, a defendant who bonds out the day after his court appearance on the filing of charges, is rearrested months later for failing to appear at a hearing, and requests a preliminary hearing while in custody is entitled to a preliminary hearing within a reasonable time after being rearrested and placed in custody. Further, because the People failed to present evidence at the preliminary hearing to establish probable cause, the court properly dismissed the felony counts and the habitual criminal sentence enhancers.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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