Volume 199 — Colorado Reports

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Speedy Trial — Compliance — Burden.</italic> It is the burden of the prosecutor and the trial court to comply with the requirements of both the speedy trial statute and rule. 2. <italic>Speedy Trial — Lack of Waiver — Not Within Six Months — Dismissal.</italic> Where the defendants were not brought to trial within the six months that followed their arraignment, and did not waive their right to a speedy trial, <italic>held</italic>, under the circumstances, their motion to dismiss was properly granted.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Constitutionality — Determination — Challenge —</italic><italic>Premises — Statute — Upheld.</italic> There are three premises which underlie a determination of a challenge to the constitutionality of a statute, namely: first, statutory interpretation must be governed by legislative intent; second, if a statute is susceptible of both constitutional and unconstitutional interpretations, the court will construe it to avoid constitutional infirmities; third, statutory provisions <italic>in pari materia</italic> must be construed together; accordingly, section <cross_reference>24-65.1-407</cross_reference>(1)(c), C.R.S. 1973, (1978 Supp.) — allowing Colorado Land Use Commission to initiate<page_number>Page 8</page_number> identification, designation, and promulgation of guidelines for matters of state interest — can be constitutionally upheld. 2. <bold>HEALTH AND ENVIRONMENT</bold> — <italic>Colorado Land Use Act — Article — Purpose.</italic> The purpose of the article of the Colorado Land Use Act dealing with areas and activities of state interest, sections <cross_reference>24-65.1-101</cross_reference> <italic>et seq.</italic>, C.R.S. 1973 (1978 Supp.), is to allow both state and local government to supervise land use which may have an impact on the people of Colorado beyond the immediate scope of the project. 3. <italic>Areas — State Interest — Colorado Land Use Commission — Delegation —</italic><italic>— Guidelines.</italic> Although the legislature reserved the right to describe those areas affected with a state interest under the Colorado Land Use Act and establish criteria for their development, it also delegated its power to local government to so designate and promulgate guidelines with the assistance of the Colorado Land Use Commission. 4. <italic>Colorado Land Use Act — Does Not Mandate — Local Governments —</italic><italic>Declare — Areas — State Interest — Request — Commission.</italic> The Colorado Land Use Act — which encourages local governments to designate areas and activities of state interest and which also provides that nothing in the Act should be construed as enhancing or diminishing power and authority of municipalities or counties — does not mandate local governments to declare that projects or areas are a matter of state interest upon request by the Colorado Land Use Commission. 5. <bold>CONSTITUTIONAL LAW</bold> — <italic>Declare Land Use Projects — Courts — Judicial</italic><italic>Review — Municipality Action — State Interest — Violation of Separation</italic><italic>of Powers.</italic> To place ultimate determination in the courts through judicial review of municipality or county's legislative action in declaring land use projects or areas to be a matter of state interest would violate constitutional principle of separation of powers. 6. <bold>COURTS</bold> — <italic>Authority — Review — Legislative Determination — Ensure —</italic><italic>Procedures — Followed.</italic> A court may, when given the authority by the General Assembly, review a legislative determination to ensure that statutory procedures have been followed, or to ensure that the legislative body has not abused its discretion. 7. <bold>HEALTH AND ENVIRONMENT</bold> — <italic>Statute — Limitation — Judicial Review —</italic><italic>Colorado Land Use Commission — Enforce Compliance — Local Government —</italic><italic>Courts — Scheme — Carried Out.</italic> The limitation upon the scope of judicial review of legislative activities is completely consistent with the language of section <cross_reference>24-65.1-407</cross_reference>(1)(c), C.R.S. 1973 (1978 Supp.); in fact, the General Assembly has provided a procedure whereby the Colorado Land Use Commission can seek to enforce compliance by local government with that body's statutory duty to consider designation of areas or activities as matters of state interest subject to certain guidelines following formal request by the Commission; role of courts, however, is not to pass upon substantive merits of local government's determination, but rather to ensure that the statutory scheme has been appropriately carried out.<page_number>Page 9</page_number> 8. <italic>Review De Novo — Statute — Questions of Illegality — Local Government</italic><italic>— Designation of Land — State Interest — Evidence.</italic> Review <italic>de novo</italic> under section <cross_reference>24-65.1-407</cross_reference>(1)(c) does not take on the meaning applied in review of judicial or quasi-judicial proceedings: namely, trial anew on the merits; rather, it constitutes a review of questions of illegality or impropriety on the part of the local government with that body's statutory duty to consider designation of land use project as matter of state interest; the <italic>de novo</italic> term is merely included to indicate that any relevant evidence may be introduced to prove that illegality or impropriety, such as the intentional exclusion of material testimony, fraud, a sham proceeding, bribery, or the failure to comply with statutory requirements. 9. <italic>Colorado Land Use Commission — Review — Denial — Merits — Electric</italic><italic>Generating Plant — Absence of Allegation — Nothing to Review — Dismissal —</italic><italic>Proper.</italic> Where the Colorado Land Use Commission sought a <italic>de novo</italic> determination of the <italic>merits</italic> of the decision of the board of county commissioners, denying Commission's formal request to designate proposed electric generating plant as matter of state concern, trial court's sole function was to review illegality and propriety of county's proceedings; thus, in the absence of any such allegation by the Commission, which was seeking review of merits of determination, there was nothing for the trial court to review; accordingly, trial court's judgment dismissing the complaint was proper. 10. <italic>Colorado Land Use Commission — "Interfere" — Powers of Municipality —</italic><italic>— Negative — Review — Act — Constitutional.</italic> Since review process of county or municipality's designation of area or activity as matter of state interest is limited to issues of legality exclusively, municipal functions are in no way impaired, and thus the Colorado Land Use Commission cannot "interfere" with lawful exercise of powers of municipality with regard to such designations, and statutory review provisions of Colorado Land Use Act are constitutional. 11. <bold>ZONING</bold> — <italic>Electric Generating Plant — Permit — Intergovernmental</italic><italic>Agreement — Standards — Reasonable Land Use — Valid and Enforceable.</italic> With regard to issuance of permit for proposed electric generating plant, where county surrendered none of its zoning authority but, rather, merely agreed to standards that it would apply in passing on whether to issue permit for proposed plant, and where such agreement was reasonable in light of great expense in preparing for project of magnitude involved, intergovernmental agreement — in which county agreed to base its approval of application upon standards set forth in agreement in return for river power authority's agreement to abide by county's zoning and reasonable land use regulations — was valid and enforceable.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Uniform Mandatory Disposition of Detainers Act</italic><italic>— Request — Final Disposition — Ninety Days — Trial — Failure —</italic><italic>Dismissal.</italic> The Uniform Mandatory Disposition of Detainers Act provides that a person in custody of the department of corrections under a sentence of imprisonment may request final disposition of any untried indictment, information or criminal complaint pending against him in Colorado; the request must be in writing, and addressed both to the court in which the charge is pending, and to the prosecuting official charged with the duty of prosecuting him; and within ninety days after receipt of request by the court and the prosecuting official, the indictment, information, or criminal complaint must be brought to trial; and failure to bring the cause to trial shall warrant dismissal with prejudice. 2. <italic>Speedy Trial — Request — Failure to Comply — Uniform Mandatory</italic><italic>Disposition of Detainers Act — Dismissal.</italic> Where defendant was not brought to trial within 90 days from the date of an effective request for speedy trial, <italic>held</italic>, under the Uniform Mandatory Disposition of Detainers Act, the trial court properly dismissed the charges against the defendant; and notwithstanding the People's claims that commencement of the 90-day period was tolled and did not commence to run until September 19, the date of the preliminary hearing, reviewing court confines itself to affirmance of the district court's ruling that, in any event, the period commenced on August 9th. 3. <italic>Speedy Trial — Motion for Consolidation — Waiver — Negative.</italic> Motion for consolidation by defendant did not waive his right to the statutorily required speedy trial. 4. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Consolidation — Discretion — Proper — Lack</italic><italic>of Abuse.</italic> The consolidations of informations is within the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is shown; there was no such abuse of discretion shown in instant case.

1. <bold>PRISONS</bold> — <italic>Contact Visitation Program — "Minute Order" — Effective —</italic><italic>"Written Order".</italic> A minute order is effective as a "written order" binding the county authorities to carry out a contact visitation program, even though it did not restate the approved regulations. 2. <bold>JUDGMENT</bold> — <italic>Decision — Entered on Minutes — Effective.</italic> A decision entered on the minutes is effective as a judgment. 3. <bold>PRISONS</bold> — <italic>Contact Visitation Rights — Regulations — Implement Program —</italic><italic>Representation at Hearing — Binding.</italic> Where both parties attended a hearing on a particular date to determine whether certain proposed jail regulations relating to a program guaranteeing contact visitation rights would satisfactorily implement an acceptable program, both petitioner and the county authorities being represented at this hearing, and where both parties knew and understood the substantive content of the decision represented by the minute order memorializing the hearing, <italic>held</italic>, under these circumstances, it follows, legally as well as logically, that the county authorities must be considered bound to implement the amended contact visitation program approved therein.

1. <bold>PUBLIC CONTRACTS</bold> — <italic>Construction Workers — Fringe Benefits — Trust</italic><italic>Funds — Payments — Lawfully Due — Statute.</italic> Fringe benefits earned by construction workers on public works projects due under certain collective bargaining agreements and required to be paid into trust funds were "payments of . . . amounts lawfully due to all persons supplying or furnishing [a contractor] or his subcontractors with labor or materials used or performed in the prosecution of the work provided for in such contract . . . ." within the purview of section <cross_reference>38-26-105</cross_reference>, C.R.S. 1973. 2. <bold>LABOR RELATIONS</bold> — <italic>Health and Welfare Benefits — Contractor's</italic><italic>Employees — — Collective Bargaining Agreements.</italic> Health and welfare benefits paid into a trust fund are part of the compensation for the work to be done by the contractor's employees; and not until the required contributions have been made will the contractor's employees have been paid in full for the labor in accordance with the collective bargaining agreements. 3. <bold>PUBLIC CONTRACTS</bold> — <italic>Trust Funds — Payment — Fringe Benefits — Workers —</italic><italic>Subcontractors — Recovery — Unpaid Amounts — Actionable.</italic> Where fringe<page_number>Page 36</page_number> benefits earned by construction workers on public works project and required, under collective bargaining agreement, to be paid into labor trust funds, which benefits involved vacation benefits, retirement pension benefits, health insurance payments, unemployment insurance payments, and apprenticeship and industry advancement funds, and each one of these benefits were agreed to be paid by the subcontractors in exchange for work done by the construction workers, and until these were paid into the trust funds, the compensation to the workers was not fully paid, <italic>held</italic>, under these circumstances, the recovery of these unpaid amounts was actionable and the trial court in each case erred in dismissing the complaints. 4. <bold>STATUTES</bold> — <italic>Modification — Presumption — New Language — Intent.</italic> Subsequent modification of a statute creates a presumption that new language was not intended to be applicable before amendment. 5. <bold>BONDS</bold> — <italic>Penal — Contractors' Bond Statute — Covers — "Amounts Lawfully</italic><italic>Due" — Unpaid Fringe Benefits — Legal Remedy.</italic> The penal bond mandated in section <cross_reference>38-26-105</cross_reference>, C.R.S. 1973, of the Contractors' Bond Statute, is intended to cover "amounts <italic>lawfully due</italic>"; and it is this language which mandates inclusion of unpaid fringe benefits in the legal remedy provided by the aforesaid statute. 6. <bold>PUBLIC CONTRACTS</bold> — <italic>Right of Action — Amounts — "Lawfully Due" —</italic><italic>Statute.</italic> Section <cross_reference>38-26-105</cross_reference>, C.R.S. 1973, creates a right in subcontractors, materialmen, mechanics, <italic>and others</italic> to bring an action for amounts "lawfully due" for work done on a public works project against a posted contractor's bond. 7. <bold>STATUTES</bold> — <italic>Language — Meaning — Useless — Prohibited.</italic> Statutory language should not be given a meaning which renders it useless. 8. <bold>PUBLIC CONTRACTS</bold> — <italic>Statute — "And Others" — Legal Interest — Unpaid</italic><italic>Benefits — Suit — Proper.</italic> In adopting the term "and others" in section<cross_reference>38-26-105</cross_reference>, C.R.S. 1973, the legislature intended to include those persons who had a legal interest in the disputed contract and brought suit on behalf of the construction workers; therefore, a trustee of a fund for unpaid fringe benefits to workers and the union which negotiated the collective bargaining agreement creating the obligation to pay the benefits may sue on behalf of the workers to recover those unpaid benefits.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Right to Counsel — Sixth Amendment — Fundamental —</italic><italic>Conflicting Interests — Prohibited.</italic> It is a fundamental tenet of the Sixth Amendment of the United States Constitution that the right to the assistance of counsel be "untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests." 2. <bold>ATTORNEY AND CLIENT</bold> — <italic>Loyalty — Another Client — Diminished —</italic><italic>Prohibited.</italic> An attorney must not be placed in any circumstance where his loyalty to another client may be diminished, fettered, or threatened in any manner by his loyalty to another client. 3. <italic>Defense Counsel — Conflict of Interest — Duty of Trial Court —</italic><italic>Appoint Separate Counsel.</italic> The U.S. Supreme Court has ruled that when counsel raises a question of conflict of interest, it is the duty of the trial court to either appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel. 4. <bold>CRIMINAL LAW</bold> — <italic>Meeting Prosecutor Without Counsel — Deprivation of</italic><italic>Counsel — Suggestion — Error.</italic> Trial court was in error in suggesting that petitioner could meet with the prosecutor without counsel to carry on his plea negotiations, since that would in effect be a deprivation of counsel. 5. <bold>ATTORNEY AND CLIENT</bold> — <italic>Defense Counsel — Frivolous Motion — Prohibited.</italic> A heavy duty is placed on defense counsel to insure that a frivolous motion is not made. 6. <italic>Public Defender — Defense Lawyer — Representation — Inimical —</italic><italic>Another — Duty to Elect — Duty to Honor Dates.</italic> If public defender or a busy defense lawyer finds that his representation of one client is inimical<page_number>Page 77</page_number> to his representation of another client, at that point, he must make an election as to the client he will represent, and he has a heavy duty to the court to see that he honors dates that he has agreed to for trial of case. 7. <italic>Withdrawal of Counsel — Conflict of Interest — Discretion of Trial</italic><italic>Court — Interference by Supreme Court — Negative.</italic> In an original proceeding involving request for withdrawal of counsel on the ground of conflict of interest, supreme court would not interfere with the discretion of the trial judge under the facts presented in instant case.

1. <bold>EXTRADITION AND DETAINERS</bold> — <italic>Issues Not Presented in Trial Court —</italic><italic>Barred — Appellate Court — Plain Error — Negative.</italic> An appellate court will not pass upon issues which have not been presented for determination in the trial court except in the case of plain or fundamental error; a careful review of the record in instant case involving extradition proceedings reveals no plain or fundamental error.

1. <bold>COURTS</bold> — <italic>Jurisdiction — Alien Corporation — Sister States — No</italic><italic>Difference.</italic> With reference to the jurisdiction of Colorado courts, there is no difference between an alien corporation and that of one of our sister states. 2. <italic>"Long Arm" Statute — Jurisdiction.</italic> Under section <cross_reference>13-1-124</cross_reference>, C.R.S. 1973, the "long arm" statute, the courts of Colorado have jurisdiction over any person, resident or not of Colorado, who engages in certain specified types of activities within Colorado. 3. <italic>Jurisdiction — "Long Arm" Statute — Burden — Allege — Engaged in</italic><italic>Conduct.</italic> When a plaintiff asks a court to find jurisdiction under the long arm statute, it is his burden to allege in his complaint facts sufficient to support a reasonable inference that the defendant engaged in conduct described in the long arm statute. 4. <bold>PROCESS</bold> — <italic>Products Liability — Lack of Showing — Transaction of</italic><italic>Business — Colorado — Negative.</italic> The district court correctly refused to find personal jurisdiction to effect service of process upon foreign corporation under the long arm statute as petitioner failed to make an adequate showing that defendant manufacturer in a products liability action transacted business in Colorado; actually, a <italic>prima facie</italic> case of threshold jurisdiction based upon the theory that the manufacturer transacted business in Colorado simply was not made to the trial court. 5. <italic>Jurisdiction — Situs of Accident — Determining Factor — Long Arm</italic><italic>Statute.</italic> The situs of the accident is the determining factor in the resolution of whether jurisdiction may be obtained under the tort section of the long arm statute. 6. <italic>Long Arm Statute — Jurisdiction — Foreign Manufacturer — Tortious</italic><italic>Act — Negative — Vehicle Purchased in Colorado — Injury — Colorado</italic><italic>Resident.</italic> Where record indicates that allegedly defective automobile was purchased in Colorado and that alleged defect injured a Colorado resident,<page_number>Page 91</page_number><italic>held</italic>, this, as such, was insufficient to establish that a "tortious act" occurred in Colorado so as to authorize the exercise of <italic>in personam</italic> jurisdiction over foreign manufacturer of vehicle under the Colorado long arm statute, section <cross_reference>13-1-124</cross_reference>, C.R.S. 1973. 7. <italic>Long Arm Statute — Jurisdiction — Service of Process — Place of</italic><italic>Injury.</italic> The place of the injury — that is, the place where the defect manifests itself — is the place of the commission of the tort referred to in the long arm statute, insofar as jurisdiction and service of process are concerned.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Failure to Perform Legal Services — Less Than Candid</italic><italic>With Court — Suspended.</italic> Attorney — who accepted a fee from his clients and disregarded his obligation to perform the legal services for which he was retained, thereby causing them inconvenience and a substantial loss, and who thereafter was less than candid with the court when questioned about settlement of one of his clients' cases — is hereby suspended for six months, to run consecutively with the previous surrender of his license for eight years; accordingly, he may not reapply for admission until eight years and six months after October 22, 1979.<page_number>Page 109</page_number>

1. <bold>WATER RIGHTS</bold> — <italic>"Considered Abandoned" — "Abandonment of a Conditional</italic><italic>Water Right" — "Abandonment of a Water Right".</italic> The use of the phrase "considered abandoned" in section <cross_reference>37-92-301</cross_reference>(4), C.R.S. 1973, cannot be considered in a vacuum but must be viewed alongside the statutory definitions of "abandonment of a conditional water right" and "abandonment of a water right" in section <cross_reference>37-92-103</cross_reference>(1) and (2), C.R.S. 1973; the former is defined as meaning "the termination of a conditional water right as a result of the failure to develop with reasonable diligence the proposed appropriation upon which such water right is to be based", and the latter is defined as "the termination of a water right in whole or in part as a result of the intent of the owner thereof to discontinue permanently the use of all or part of the water available thereunder."<page_number>Page 111</page_number> 2. <italic>Abandonment — Conditional Water Right — Absolute Water Right —</italic><italic>Different Tests.</italic> The legislature clearly intended different tests to be applied in determining when a conditional water right is abandoned and when an absolute water right is abandoned; the difference is the element of intent, which must be shown before an abandonment of an absolute water right can be decreed, but which is not necessary in establishing the abandonment of a conditional water right; the test applicable to determining whether a conditional water right has been abandoned is whether there has been a "failure to develop with reasonable diligence." 3. <italic>"Failure to Develop With Reasonable Diligence" — Conditional Right —</italic><italic>— Finding of Reasonable Diligence.</italic> In considering section 301(4) in juxtaposition with section 103(1), it is evident that the legislature was drawing a clear connecting line between "failure to develop with reasonable diligence" and the requirement that the owner or user of a conditional water right obtain a finding of reasonable diligence; in effect, the General Assembly equated a failure to obtain a finding of reasonable diligence with a failure to develop with reasonable diligence. 4. <italic>Statute — Considered — Statute of Limitations — Diligence Findings —</italic><italic>— Timely Manner.</italic> Section 301(4) can be considered as a statute of limitations for obtaining findings of reasonable diligence with respect to conditional water rights, and, as such, can be applied to existing rights so long as a reasonable period of time is provided for exercise or protection of those rights; moreover, when the General Assembly exercised its power to extend the filing date, thereby giving the holders of conditional water rights the opportunity to protect their interests, it demonstrated a legislative recognition of the effect of failure to file and obtain diligence findings in a timely manner. 5. <italic>Use of Water — Legislature — Provide — Means — Determination of</italic><italic>Rights — Requirements.</italic> The legislature has the power to provide reasonable means for determining rights to the use of water, and to require all persons claiming such rights to present them in a prescribed manner, within a prescribed period, and to provide that all such claims not so presented be barred. 6. <italic>Statutes — Failure to Timely File — Application — Finding of</italic><italic>Reasonable Diligence — Loss of Rights.</italic> Under the Water Right Determination and Administration Act of 1969, and specifically pursuant to section<cross_reference>37-92-301</cross_reference>(4), C.R.S. 1973, failure to timely file an application for a quadrennial finding of reasonable diligence in the development of a conditional water right, absent evidence that the holder of the right was prevented from filing by reason of conditions beyond his or her control, mandates cancellation of the right; in short, the owner or user of a conditional decree must comply with sections 301(4) and 601, and failure to do so results in the loss of his conditional water rights. 7. <italic>Application — Inadvertent Omission — Conditional Water Right —</italic><italic>Findings — Non-Correctible Clerical Error.</italic> Inadvertent omission of a conditional water right from an application for a finding of reasonable diligence under section 301(4) of the 1969 Act, and the consequent omission of the conditional right from the trial court's findings based on that application did not constitute correctible clerical error.<page_number>Page 112</page_number> 8. <italic>Correction of Clerical Errors — Statute Purpose.</italic> The rule of law allowing correction of clerical errors is governed by section<cross_reference>37-92-304</cross_reference>(10), C.R.S. 1973, and was designed to enable the trial court to amend its judgments "to speak the truth and show the judgment of the court which was actually pronounced." 9. <italic>Clerical Error Rule — Inapplicable Conditional Right — Never</italic><italic>Mentioned — Never Properly Before Court.</italic> The clerical error rule does not apply to allow the amendment of a finding and decree — in a case relating to reasonable diligence in the development of conditional water rights — to include a water right never mentioned in the application and never properly before the water court for its consideration. 10. <bold>JUDGMENT</bold> — <italic>Summary — When Appropriate — Rules.</italic> Under C.R.C.P. 56(c), summary judgment is appropriate only where there exists no "genuine issue as to any material fact." 11. <italic>Summary — Conditional Water Rights — Grant — Findings — Failure to</italic><italic>Meet Statutory Requirements — Lack of Error.</italic> Where the only issue germane to summary judgment motion was whether river district had or had not complied with statutory requirements for obtaining findings of reasonable diligence with respect to conditional water rights, and where undisputed facts before trial court showed that the river district failed to meet the statutory requirements, <italic>held</italic>, under these circumstances, trial court did not err in granting the motion for summary judgment.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Neglect of Legal Matters — Failure to Cooperate —</italic><italic>Violation of Supreme Court Rule — Public Censure.</italic> Attorney — who neglected legal matters entrusted to him, who failed to cooperate with the grievance committee by delaying answer to proceedings until date of hearing, and who violated supreme court rule prohibiting gross carelessness or negligence on the part of an attorney — is publicly censured.

1. <bold>STATUTES</bold> — <italic>Earlier Specialized Expression — Effective — Absent —</italic><italic>Manifest Legislative Intent.</italic> Even though general expression of statute postdates specific one, absent a manifest legislative intent that later provision prevail, the earlier, specialized expression remains effective. 2. <bold>CRIMINAL LAW</bold> — <italic>Sentence Requirement — Statute — Mandatory — Habitual</italic><italic>Offenders.</italic> Rule of statutory interpretation makes clear that district<page_number>Page 129</page_number> court correctly ruled that the sentence requirement in section <cross_reference>42-2-206</cross_reference> for habitual offenders is mandatory and is not subject to plea bargaining in order to obtain a deferred sentence, as generally allowed by section<cross_reference>16-7-403</cross_reference>, C.R.S. 1973. 3. <bold>MOTOR VEHICLES</bold> — <italic>Mandatory Sentences — Habitual Offenders — Drive —</italic><italic>License Revoked — "Conviction" — Plea of Guilty.</italic> Under statute prescribing mandatory sentences for habitual offenders of traffic laws, who, absent an emergency, continue to drive while their licenses are revoked, the definition of the term "conviction" must include a plea of guilty.

1. <bold>LICENSES</bold> — <italic>Massage Parlor Code — Police Power — Statewide Concern.</italic> The general assembly enacted the Massage Parlor Code as an exercise of the police power for the protection of the economic and social welfare and the health, welfare and safety of the people of the state, and that the licensing and regulation of massage parlors are matters of statewide concern. 2. <bold>STATUTES</bold> — <italic>Massage Parlor Code — Presumption of Constitutionality —</italic><italic>Challenge — Burden — Proof Beyond Reasonable Doubt.</italic> Legislation such as the Massage Parlor Code is entitled to a presumption of constitutionality; and the burden is upon the person alleging invalidity to prove it beyond a reasonable doubt. 3. <italic>Challenge of Unconstitutionality — Vagueness — Duty of Court —</italic><italic>Practical Construction.</italic> When the challenge of alleged unconstitutionality of the statute is based upon the doctrine of vagueness, the court has the duty to construe the statute in such a way that it is not void for vagueness whenever a reasonable and practical construction can be given to its language. 4. <italic>Considered as a Whole — Intent of General Assembly — Words and</italic><italic>Phrases.</italic> One must read and consider a challenged statute as a whole so as to ascertain the intent of the General Assembly in passing it, and the words and phrases used are to be considered in their generally accepted meaning. 5. <bold>WORDS AND PHRASES</bold> — <italic>"Good Character" — "Record" — Sufficient —</italic><italic>"Reputation" — Unconstitutionally Vague — Massage Parlor Code.</italic> Although the word "reputation" has been held to be unconstitutionally vague because it could not suffice as a standard of conduct, nevertheless, the statutory phrase "good character" or "record" as found in the Massage Parlor Code is sufficiently defined for constitutional purposes.<page_number>Page 138</page_number> 6. <bold>LICENSES</bold> — <italic>Massage Parlor Code — Primary Legislative Concern — Licensee</italic><italic>— Employees — Good Moral Character.</italic> A reading of the Massage Parlor Code, together with section <cross_reference>24-5-101</cross_reference>, C.R.S. 1973, which is applicable to any state and local licensing agency, reveals that, in view of the expressed public necessity that massage parlors be licensed and regulated, the primary legislative concern is that the licensee and his employees shall be persons of <italic>good moral character</italic>, fit to conduct the business in accordance with the regulations imposed by the statute or enacted by the licensing authority pursuant to section <cross_reference>12-48.5-118</cross_reference>. 7. <bold>WORDS AND PHRASES</bold> — <italic>"Good Moral Character" — Meaning — Criminal Conduct</italic><italic>— Felonies.</italic> The meaning of "good moral character," "good character," or "character" includes the applicant's, or his employees', propensities toward criminal conduct and criminal record, if any, taking into account such record as ameliorated by any rehabilitation; moreover, the criminal conduct referred to in section <cross_reference>24-5-101</cross_reference> is limited to felonies or other offenses involving moral turpitude. 8. <bold>LICENSES</bold> — <italic>"Record" — Massage Parlor Code — Criminal Record.</italic> The term "record," as used in the Massage Parlor Code, refers to the criminal record of the applicant or his employee. 9. <italic>Massage Parlor Code — "Good Character" — "Record" — Meaning — First</italic><italic>Amendment — Denial — No Issue.</italic> Men of common intelligence have no need to guess at the meaning of "good character" and "record" in the Massage Parlor Code; actually, the standard of conduct is sufficiently defined to provide adequate notice to license applicants and their employees, particularly since there is no issue relating to the denial of First Amendment freedoms. 10. <bold>STATUTES</bold> — <italic>Total Precision in Drafting — Elusive — Never Demanded.</italic> In drafting statutes, total precision of expression is elusive and has never been demanded of the legislature. 11. <bold>LICENSES</bold> — <italic>Prostitution by Employee — Moral Turpitude — Revocation of</italic><italic>License — Massage Parlor — Due Process.</italic> Where employee admittedly engaged in an act of prostitution in violation of section <cross_reference>18-7-201</cross_reference>, C.R.S. 1973, which is an offense involving moral turpitude, and since section<cross_reference>12-48.5-108</cross_reference>(1)(c) prohibits a license from being held by any person employing any other person who is not of "good character" satisfactory to the local licensing authority, <italic>held</italic>, under such circumstances, it was within the authority of appellee board of county commissioners to revoke appellant's license to operate a massage parlor; appellant was not denied his property without due process of law.

1. <bold>PERJURY</bold> — <italic>Materially False — Affect — Outcome — Proceeding — Statute.</italic> In order for a statement to be materially false for purposes of the first-degree perjury statute, section <cross_reference>18-8-502</cross_reference>, C.R.S. 1973, it must be one which could have affected the course or outcome of an official proceeding. 2. <italic>Materiality — Determination — False Declaration — Tendency to</italic><italic>Influence or Hamper — Investigation.</italic> The rule generally applied to determine materiality is whether the false declaration has a tendency to influence, impede or hamper the grand jury from pursuing its investigation. 3. <italic>Testimony — Material to Investigation — Need Not Be Material — Main</italic><italic>Issue.</italic> Testimony that is material to the grand jury investigation need not be material to the main issue and it need not be directed to the primary subject of the investigation. 4. <bold>GRAND JURY</bold> — <italic>Purpose.</italic> The purpose of the grand jury is to investigate possible offenses and to act as an independent barrier which protects the innocent from oppressive prosecution. 5. <italic>Investigation of Heroin Ring — Purpose — Denial of Meeting — Known</italic><italic>Member — Impede Investigation.</italic> Where the purpose of the grand jury was to investigate a heroin ring, not merely to investigate one known member of the ring, and where the record at trial supported the People's position that the grand jury was also interested in identifying other members of the<page_number>Page 144</page_number> drug ring, <italic>held</italic>, under these circumstances, respondent's denial of his meeting with a known member of the ring tended to impede and hamper the grand jury from pursuing its investigation of the drug ring, since all leads were material which might have assisted the grand jury in identifying those who had at any time been members of the heroin ring. 6. <bold>PERJURY</bold> — <italic>Indictment — False Testimony — Sufficiency — Statute —</italic><italic>Adequate — Preparation of Defense.</italic> Where perjury indictment charged respondent with having given materially false testimony before a grand jury investigating a heroin distribution ring, <italic>held</italic>, as such, reviewing court concludes that the indictment was sufficient under the statute, section<cross_reference>18-8-502</cross_reference>(1), C.R.S. 1973, to advise respondent of the charges against him so that he could adequately prepare a defense. 7. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Sufficient Advise — Charges — Verbatim</italic><italic>Testimony — Converse.</italic> An indictment is sufficient to advise the defendant of the charges against him when it quotes verbatim testimony by the defendant to the grand jury which, by necessary implication, indicates that the converse of his testimony was the truth.

1. <bold>COURTS</bold> — <italic>Circumstances — Accused Brought Before Court — No Bearing on</italic><italic>Power to Try.</italic> The circumstances by which an accused person comes before a court have no bearing on the court's power to try him. 2. <italic>Jurisdiction — Presence — Sufficient — Inquiry — Unnecessary.</italic> A court which has jurisdiction of the subject matter of the criminal prosecution need not inquire how a defendant was brought before it; his presence in court is sufficient to confer jurisdiction over his person. 3. <bold>HABEAS CORPUS</bold> — <italic>Manner — Brought Before Court — No Bearing — Conviction</italic><italic>— Dismissal — Proper.</italic> The manner by which petitioner was brought to Colorado from Wyoming has no bearing on the validity of his Colorado conviction, thus, district court was correct in dismissing the habeas corpus proceeding.<page_number>Page 196</page_number>

1. <bold>APPEAL AND ERROR</bold> — <italic>Failure to Raise Issue — Motion for New Trial —</italic><italic>Handcuffs in Courtroom — Not Considered — Rule.</italic> Under Crim. P. 33(a), a party must raise an issue in a motion for a new trial in order for an appellate court to review the error, thus, since defendant failed to comply with this rule — defendant did not contend that he had been denied a fair trial as a result of being brought into the courtroom in handcuffs at the sanity trial — reviewing court is precluded from considering the matter absent "plain error". 2. <bold>TRIAL</bold> — <italic>Fair — Denial — Handcuffs — Exposure — Unnecessary.</italic> A denial of a fair trial occurs where a defendant appears before a jury in handcuffs when the exposure is unnecessary and prejudicial. 3. <bold>CRIMINAL LAW</bold> — <italic>Handcuffs — Courtroom — "Plain Error" — Defect Affecting</italic><italic>Substantial Rights — Negative — Rule.</italic> Although C.R.C.P. 52(b) provides that "plain error" or defects affecting substantial rights may be noticed even though they were not brought to the attention of the court, nevertheless, reviewing court holds that bringing a defendant into the courtroom in handcuffs would not be considered as fundamental error in the absence of a record which demonstrates that the jurors even saw defendant in such a circumstance, especially where this occurred in the sanity phase of the trial; there is nothing in the record to indicate that defendant was prejudiced or that "plain error" or a "defect affecting substantial rights" exists. 4. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Same Act — Violation — Two Distinct</italic><italic>Statutory Provisions — Test — Merger — Blockburger v. United States.</italic> Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is: whether each provision requires proof of an additional fact which the other does not; this test for merger of offenses under the double jeopardy clause has been laid down by the United States Supreme Court in <italic>Blockburger v. United States</italic>, <cross_reference>284 U.S. 299</cross_reference>, <cross_reference>52 S.Ct. 180</cross_reference>,<cross_reference>76 L.Ed. 306</cross_reference>. 5. <bold>CRIMINAL LAW</bold> — <italic>Merger of Offenses — Blockburger Test — Burglary —</italic><italic>Assault — Conviction — Both Offenses — Proper.</italic> In prosecution for first-degree burglary and first degree assault, where trial court correctly noted and instructed the jury that first-degree assault requires proof of serious bodily injury, which first-degree burglary does not, and first-degree burglary as charged requires proof of the intent to cause<page_number>Page 202</page_number> bodily harm which the form of first-degree assault charged here does not,<italic>held</italic>, since the crimes of first-degree burglary and first-degree assault as charged require proof of an additional fact not necessary in proof of the other, and the <italic>Blockburger</italic> test having been satisfied, trial court did not err in entering convictions for both offenses.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Failing to File Income Tax Return — False</italic><italic>Statement — — Application for Admission to Foreign Bar — Suspension —</italic><italic>Reinstatement — Conditions.</italic> Where attorney-respondent was convicted of a misdemeanor for failing to file a federal income tax return and was found to have made a false statement upon an application for admission to the bar of another state, <italic>held</italic>, under these circumstances, attorney is suspended from the practice of law in Colorado for a period of three years, and will be required to demonstrate upon application for reinstatement that he possessed moral and professional qualifications for admission to the Colorado Bar.

1. <bold>DIVORCE</bold> — <italic>Custody — Action Pending in California — Jurisdiction —</italic><italic>Uniform Custody Act — Colorado Court — Error.</italic> Where the court of another state, California, makes a specific finding that it has jurisdiction under the Uniform Child Custody Jurisdiction Act to render a valid custody decree, and such action was pending in that court prior to initiation of a like proceeding in Colorado, the Colorado court is without jurisdiction to act in the matter, thus, since the Colorado court was precluded from exercising jurisdiction to permanently enjoin father from removing his child from the state of Colorado, it was error for the court to deny petitioner-father's motion to dismiss the Colorado custody proceeding. 2. <italic>Jurisdictional Test — Uniform Custody Act — California — Specific</italic><italic>Finding — Jurisdiction.</italic> The jurisdictional test to render a valid decree under the Uniform Custody Act, section <cross_reference>14-13-105</cross_reference>, C.R.S. 1973, is whether the "contestants" had reasonable notice and opportunity to be heard; here, as the record shows, the grandparents, as residents of Colorado and seeking custody of the child, were made parties to California court proceeding —<page_number>Page 208</page_number> where the issue of custody was first raised — and were afforded the opportunity to appear and present testimony; thus, since the California court made a specific finding that it had jurisdiction based on the California Civil Code, reviewing court finds no reason to dispute such determination.

1. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Spending Agency — Statute — Mechanism for</italic><italic>Removal — Inapplicable — District Attorney.</italic> By its terms, section 29-1-118, C.R.S. 1973 provides a mechanism for the removal of any member of the governing body of any county, city, or town or any member, officer, employee, or agent of any department, board, commission, or other spending agency; a district attorney, however, is a state officer and may only be removed from office pursuant to Article XIII, Section 2 of the Colorado<page_number>Page 213</page_number> Constitution, which provides for impeachment; thus, section 29-1-118, C.R.S. 1973 does not provide for the removal of a district attorney from office. 2. <italic>Constitution — Impeachment — Removal of District Attorney.</italic> Article XIII of the Colorado Constitution relating to impeachment of governor and other state and judicial officers provides exclusive method for removal of district attorney.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Due Process Violation — Three-Pronged Test —</italic><italic>Establish.</italic> The three-pronged test to establish a violation of due process when evidence has been lost or destroyed is: (1) whether the evidence was suppressed or destroyed by the prosecution; (2) whether the evidence is exculpatory; and (3) whether the evidence is material to the defendant's case. 2. <italic>Lost or Destroyed — Sanctions — Purposes.</italic> The purposes for imposition of sanctions when evidence has been lost or destroyed are two-fold: the defendant must not be so prejudiced by the loss of evidence that the truth-finding process is irreparably harmed, and the sanctions serve to deter the prosecutor and the police from destroying material evidence.<page_number>Page 238</page_number> 3. <italic>Fingertip — Disposal — Gross Negligence — Misfeasance — Sanctions —</italic><italic>Proper.</italic> In homicide prosecution, where trial court found that disposal of fingertip found at scene of homicide was the result of gross negligence and misfeasance, imposition of sanctions to deter police from such conduct was appropriate. 4. <italic>Destroyed — Question of Exculpation — Proof by Defendant —</italic><italic>Unnecessary.</italic> When criminal evidence has been destroyed it is impossible for the court to determine whether it would have exculpated the defendant, therefore, it is not necessary that the defendant prove the exculpatory value of the evidence so long as that evidence is not merely incidental to the prosecution's case or the defendant's defense; the defendant, however, must at a minimum establish the reasonable possibility that the evidence could have been of assistance to the defense. 5. <italic>Fingertip — Homicide — Substantial Part of Proof — Severance —</italic><italic>Determination — Assistance to Defense — Due Process.</italic> Where district attorney certified that all evidence relating to severed fingertip found at scene of homicide was a substantial part of the proof of the charge pending against the defendant, and where defendant established through his expert witness that had the fingertip been preserved, the manner of severance could have been determined and that there was a reasonable possibility that the results could have been of assistance to the defense, either to rebut prosecutor's apparent theory or corroborate his own theory of defense,<italic>held</italic>, under these circumstances, fingertip evidence was exculpatory for purposes of test to determine whether destruction of evidence by police department deprived defendant of his due process rights. 6. <italic>Material — Guilt or Innocence — Probative — Cause — Relevant —</italic><italic>Homicide.</italic> Evidence is material to the guilt or innocence of a defendant when it is of probative character on that question, therefore, since the cause of severance of the fingertip in instant case was relevant to the parties' respective theories and the expert's testimony would have been probative of this issue, the destroyed evidence was material in homicide prosecution. 7. <italic>Loss or Destruction — Proper Remedy — Court — Fashion — Due Process.</italic> There is a broad discretion in fashioning a proper remedy for the loss or destruction of evidence; however, the responsibility of the trial court is to fashion an appropriate remedy which is no more restrictive than necessary to protect the defendant's right to due process. 8. <italic>Severed Fingertip — Homicide — Record — Preliminary Hearing —</italic><italic>Exclusion of Evidence — Proper.</italic> Where record reveals that trial court read the entire transcript of defendant's preliminary hearing, and it is obvious from the record that trial court believed that evidence revealed in the transcript was important and necessary in resolving the issue, and where district attorney in arguing before trial court referred to testimony at the preliminary hearing, <italic>held</italic>, under these circumstances, trial court's order excluding all evidence — pertaining to severed fingertip found at scene of homicide and destroyed by police department approximately one month after last test had been performed on it — was proper. 9. <bold>APPEAL AND ERROR</bold> — <italic>Findings and Conclusions — Supported by Evidence —</italic><italic>Presumption.</italic> It is a well-settled principle of appellate practice that the supreme court must presume that the trial court's findings and conclusions<page_number>Page 239</page_number> are supported by the evidence where the appellant has failed to provide a complete record on appeal.

1. <bold>ATTORNEY AND CLIENT</bold> — <italic>Lack of Definitive Agreement — Quantum Meruit.</italic> Where there is no definitive agreement between attorney and client as to the amount attorney would be entitled in the event of termination of services, the fee arrangement by necessity is upon a <italic>quantum meruit</italic> basis. 2. <italic>Advance Fee Payment — Withdrawal — Obligation — Return Unearned</italic><italic>Portions.</italic> Where client made an advance fee payment to attorney and subsequently requested attorney to withdraw from the case because of dissatisfaction with his services, the attorney was legally obligated to return all unearned portions of the advance payment. 3. <bold>ATTORNEYS AT LAW</bold> — <italic>Advance Fee Payment — Unearned Portion — Failure to</italic><italic>Return — Violation — Public Censure.</italic> Attorney — who failed to return<page_number>Page 249</page_number> unearned portion of advance fee payment after being discharged because of client dissatisfaction, who in effect collected an excessive fee by reason of the briefness and limited nature of his representation, and who continuously failed to return that portion of the payment which was unearned — was in violation of the Code of Professional Responsibility and accordingly is publicly censured.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Freedom of Religion — United States Constitution —</italic><italic>Amendments.</italic> The United States Constitution, through the 1st and 14th Amendments, establishes that neither congress nor the legislature of a state, can make any law respecting an establishment of religion, or prohibiting the free exercise thereof. 2. <italic>State Fair Regulation — Restriction of Religious Organization's</italic><italic>Activities at Public Fair — Freedom of Religion — Violation.</italic> State fair regulation requiring religious organization to rent and remain at booth while stating religious views, selling literature and soliciting contributions was not sufficiently tied to congestion and crowd control so as to override organization's First Amendment right to freedom of religion; accordingly, trial court's order enjoining the State Fair and Industrial Exposition Commission from enforcing the regulation was proper, since the evidence did not support enforcement of the regulation.

1. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Refusal — Proper — Contents — Embodied —</italic><italic>Other.</italic> It is not reversible error to refuse an instruction tendered by the defense when the contents of that instruction are embodied in the court's other instructions. 2. <bold>HOMICIDE</bold> — <italic>Second-Degree Murder — Evidence of Guilt — No Reversible</italic><italic>Error.</italic> On appeal from a conviction for second-degree murder, reviewing court finds no reversible error in the trial of instant case; the evidence of guilt was overwhelming and the errors asserted did not affect the substantial rights of the defendant-appellant and were harmless beyond a reasonable doubt. 3. <bold>TRIAL</bold> — <italic>Fair — Proper — Perfect — Negative.</italic> A defendant is entitled to a fair trial, but not a perfect trial.<page_number>Page 302</page_number>

1. <bold>APPEAL AND ERROR</bold> — <italic>Sentence — Propriety — Rule — Not Appealable —</italic><italic>Dismissal.</italic> When the issue presented by a Crim. P. 35(a) motion concerns propriety of sentence, it is not appealable; accordingly, the cause is remanded for the entry of an order dismissing the appeal. 2. <bold>CRIMINAL LAW</bold> — <italic>Sentence — Health Condition — Cruel and Unusual —</italic><italic>Negative — Commutation.</italic> A defendant's health condition which would affect his ability to serve a sentence already imposed does not raise a constitutional issue of cruel and unusual punishment, but is properly addressed to the commutation power of the governor.

1. <bold>LIMITATION OF ACTIONS</bold> — <italic>Support — Child — Barred — Statute of</italic><italic>Limitations — Revival — Negative.</italic> A support action prosecuted by the Department of Social Services which was barred by the statute of limitations in effect at the date of the birth of the child for which support was sought may not be constitutionally revived by section 19-6-108, C.R.S. 1973 (1978 Repl. Vol. 8). 2. <italic>Statute of Limitations — Bar — Right to Plead — Not Impaired by</italic><italic>Legislation.</italic> Where a statute of limitations has run and the bar attached, the right to plead it as a defense is a vested right which cannot be taken away or impaired by subsequent legislation. 3. <italic>Statute of Limitations — Bar — Attached — Legislature — Revive —</italic><italic>Prohibited.</italic> When the bar of the statute of limitations has once attached, the legislature cannot revive the action. 4. <bold>BASTARDS</bold> — <italic>Uniform Parentage Act — Maintain Paternity Action —</italic><italic>Previously — Negative.</italic> Under the Uniform Parentage Act, section 19-6-107, C.R.S. 1973 (1978 Repl. Vol. 8) the <italic>child</italic> may now maintain a paternity action, whereas, previously, the child could not maintain such an action, and was not even a party to a paternity suit. 5. <bold>INFANTS</bold> — <italic>Uniform Parentage Act — Action by Child — Constitutional</italic><italic>Infirmities — Same as Mother — Negative.</italic> An action brought by the child under the Uniform Parentage Act does not suffer the same constitutional infirmities as does an action brought by the mother, the father or the department of social services. 6. <italic>Child — Party — Statute — Minor — Guardian Ad Litem.</italic> Section 19-6-110, C.R.S. 1973 (now in 1978 Repl. Vol. 8) of the Uniform Parentage<page_number>Page 316</page_number> Act specifies that the child shall be made a party to the action, and if a minor "he shall be represented by his general guardian or a guardian ad litem appointed by the court." 7. <bold>BASTARDS</bold> — <italic>Uniform Parentage Act — Mother — Guardian — Suit — Child —</italic><italic>Prohibited.</italic> Under the Uniform Parentage Act, a child's mother may not represent the child as guardian or otherwise, in a paternity suit. 8. <bold>CONSTITUTIONAL LAW</bold> — <italic>Abolition — Old Remedy — Substitution of New One —</italic><italic>Impairment — Vested Right — Negative.</italic> Abolition of an old remedy, or the substitution of a new one, neither constitutes impairment of a vested right nor the imposition of a new duty, for there is no such thing as a vested right in remedies.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Following Arrest — Lawful — Frisked —</italic><italic>Burglary Attempt.</italic> In burglary attempt to gain entry into building through a secured window, search of defendant's pockets following his arrest was lawful even though defendant had already been frisked for weapons and, under the circumstances, could not be in possession of the fruits and instrumentalities of the crime for which he was arrested. 2. <italic>Incident to Arrest — Exception — Warrant — Limited — Person and</italic><italic>Area — United States v. Robinson.</italic> In the case of <italic>United States v.</italic><italic>Robinson</italic>, <cross_reference>414 U.S. 218</cross_reference>, <cross_reference>94 S.Ct. 467</cross_reference>, <cross_reference>38 L.Ed.2d 427</cross_reference> (1973), the United States Supreme Court held that a search incident to an arrest constituted an exception to the warrant requirement, provided that the search was limited to the arrested person and the area within his control. 3. <bold>ARREST</bold> — <italic>Custodial — Reasonable — Intrusion — Lawful — Search Incident</italic><italic>to Arrest — Hernandez v. People — Not Viable.</italic> A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment and, the intrusion being lawful, a search incident to an arrest requires no additional justification; accordingly, the limitations imposed in <italic>Hernandez v. People</italic>, <cross_reference>153 Colo. 316</cross_reference>, <cross_reference>385 P.2d 996</cross_reference> — that a search incident to an arrest could constitutionally extend only to a search for the fruits and instrumentalities of the crime for which the person was arrested — are no longer viable. 4. <bold>SEARCHES AND SEIZURES</bold> — <italic>Custodial Arrest — Search — Contraband — Not</italic><italic>Related to Crime — United States v. Robinson — Gufstafson v. Florida.</italic> Under the authority of the United States Supreme Court decisions in <italic>United</italic><italic>States v. Robinson</italic> and <italic>Gufstafson v. Florida</italic>, <cross_reference>414 U.S. 260</cross_reference>, <cross_reference>94 S.Ct. 488</cross_reference>,<cross_reference>38 L.Ed.2d 456</cross_reference> (1973), the officer, after a custodial arrest may properly search the defendant and seize all contraband or articles, the possession of which gives the police officers reason to believe a crime has been committed, even though such articles do not relate to the crime for which the defendant was initially arrested. 5. <bold>CRIMINAL EVIDENCE</bold> — <italic>Confession — Voluntariness — Findings of Fact —</italic><italic>Evidence — Support — Appeal.</italic> When there is evidence to support the trial<page_number>Page 323</page_number> court's findings of fact as to the voluntariness of a confession, the findings of the trial court will not be disturbed on appeal. 6. <bold>CONSTITUTIONAL LAW</bold> — <italic>Privilege Against Self-Incrimination — Right to</italic><italic>Counsel — Waiver — Burden on Prosecution — Standard — Request for</italic><italic>Attorney — — Higher Burden.</italic> A heavy burden rests upon the prosecution to demonstrate a waiver of the constitutional privilege against self-incrimination and the right to counsel, since the rights involved are of constitutional magnitude, and the standard to be applied is proof of an intentional relinquishment of a known right or privilege; thus, where the defendant has requested that he be given a chance to speak with an attorney prior to being questioned, an even higher burden than usual is placed on the party seeking to show a waiver of that right. 7. <italic>Counsel — Request — Police — Must Cease — Interrogation — Provide —</italic><italic>Accused.</italic> Once the accused has requested counsel the police officers must cease interrogation immediately and must, within a reasonable period of time, provide the accused with an opportunity to talk to an attorney. 8. <italic>Attorney — Statement — Sufficient — Intent — Exercise — Right to</italic><italic>Counsel — Police — Cease Questioning.</italic> Although defendant's statement "I think I need to see an attorney" was neither "sophisticated" nor, perhaps, in a "legally proper form," it was nevertheless sufficient to put the police officers on notice that the defendant intended to exercise his constitutional rights to counsel; at this point, the police should have ceased all questioning until the defendant was given a reasonable opportunity to contact his attorney. 9. <italic>Attorney — Right — Unique — Keystone — Protection — Other Rights.</italic> The right to an attorney is unique in that it is often the keystone to the protection of a defendant's other constitutional rights. 10. <bold>SEARCHES AND SEIZURES</bold> — <italic>Consent — Miranda Violation — Court —</italic><italic>Consider — — Illegality.</italic> Where defendant's consent to search of automobile followed a <italic>Miranda</italic> violation, the trial court should consider whether defendant's consent was derived through an exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. 11. <italic>Lack of Probable Cause — Car — Contraband — Burden of Proof —</italic><italic>Prosecution — Consent — Lawful Authority.</italic> Where officers lacked probable cause to believe that defendant's car contained contraband or evidence of a crime and there was no reason to believe that the car itself was evidence of a crime, the burden of proof was on the prosecution to either show that the initial search and seizure of the automobile was properly predicated on consent or demonstrate the presence of other lawful authority for the seizure. 12. <bold>COURTS</bold> — <italic>United States Supreme Court — Schneckloth v. Bustamonte —</italic><italic>Factors — Voluntariness.</italic> Factors relevant to determination of voluntariness of consent to search of automobile must be determined under the standards set out in United States Supreme Court opinion of<italic>Schneckloth v. Bustamonte</italic>, <cross_reference>412 U.S. 218</cross_reference>, <cross_reference>93 S.Ct. 2041</cross_reference>, <cross_reference>36 L.Ed.2d 854</cross_reference> (1973). 13. <bold>APPEAL AND ERROR</bold> — <italic>Interlocutory — Authorized — Statute.</italic> With reference to defendant's challenge to the constitutionality of the<page_number>Page 324</page_number> interlocutory appeal provisions of C.A.R. 4.1, filing of interlocutory appeal by the prosecution from suppression order of the trial court is authorized by the plain language of section <cross_reference>16-12-102</cross_reference>, C.R.S. 1973 (now in 1978 Repl. Vol. 8). 14. <italic>Interlocutory — Rule — Equal Protection Rights.</italic> Interlocutory appeals provision, C.A.R. 4.1, does not deny a defendant his equal protection rights under the United States Constitution.

1. <bold>PARTIES</bold> — <italic>Refund of Taxes — Fire Protection District — Necessary</italic><italic>Party — — Indispensable Party — Negative.</italic> In action for review of a decision of board of county commissioners pursuant to C.R.C.P. 106 for refund of taxes erroneously paid, fire protection district which received the taxes in dispute is not a necessary party and therefore cannot be an indispensable party. 2. <bold>TAXATION</bold> — <italic>Refund — Board of County Commissioners — Represents All</italic><italic>Jurisdictions — Statute.</italic> Under section <cross_reference>39-1-113</cross_reference>, C.R.S. 1973 (1979 Supp.), the General Assembly has determined that the board of county commissioners represents all jurisdictions which have received taxes subject to refund, and there is no provision in the statute for the presence of any other taxing entity.

1. <bold>CERTIORARI</bold> — <italic>Petition for Rehearing — Court of Appeals — Timely</italic><italic>Filing — — Supreme Court — Prerequisite.</italic> Section <cross_reference>13-4-108</cross_reference>(1), C.R.S. 1973 and C.A.R. 52(b) both require a timely filing of a petition for rehearing in the court of appeals before the supreme court will issue a writ of certiorari; therefore, a petition for certiorari will not be entertained by the supreme court in the absence of this prerequisite. 2. <bold>APPEAL AND ERROR</bold> — <italic>Petition for Rehearing — Untimely — No Duty to</italic><italic>Accept — Duty — Request — Extension of Time.</italic> Nothing in the language of C.A.R. 40(a) would imply nor was it the intention of the supreme court in drafting this language that there be a duty on the part of the appellate court to accept an untimely petition for rehearing; the only duty which the<page_number>Page 342</page_number> rule creates is that the court use its sound discretion in considering a request for an extension of time to file such petition. 3. <bold>COURTS</bold> — <italic>Supreme Court — Review — Original Proceeding — Relief —</italic><italic>Court — — Failure to Perform.</italic> When the supreme court reviews a lower court's action on an original proceeding in the nature of mandamus, relief will be granted only if that court fails to perform its duty. 4. <italic>Court of Appeals — Performed Duty — Rejection — Motion — Petition</italic><italic>for Rehearing — Untimely — No Duty to Accept.</italic> Court of appeals performed its duty when it considered and rejected petitioner's motion requesting recall of mandate denying his motion for postconviction relief and requesting extension of time to file petition for rehearing of his motion for postconviction relief; court of appeals had no duty to accept petitioner's untimely petition for rehearing.

1. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Statutory Cities — Powers — Express —</italic><italic>Implied — — Strictly Construed.</italic> Statutory cities possess only such powers as are expressly conferred by statutory grant or exist by necessary implication. 2. <italic>Powers — Statutory Cities — Strictly Construed.</italic> Powers conferred on statutory cities by statutory grant are to be strictly construed, and any doubt as to the power of a statutory city to act must be resolved against it. 3. <bold>AMUSEMENTS</bold> — <italic>Cities — Regulation of Business — Statute — Tax on Persons</italic><italic>— Not Authorized.</italic> The general assembly, by enacting section <cross_reference>31-15-501</cross_reference>, C.R.S. 1973 (1977 Repl. Vol. 12), under the heading "Regulation of Businesses," obviously intended to authorize statutory cites to regulate only businesses, such as amusements or places of amusements; a tax imposed under this authority must therefore be a tax on the privilege of doing business, and imposed upon the business or person engaged therein; since Sheridan's admission tax is not imposed upon businesses offering amusements or places of amusements, but is rather a tax imposed upon <italic>persons</italic> patronizing such businesses, it is not authorized by section <cross_reference>31-15-501</cross_reference>, C.R.S. 1973 (1977 Repl. Vol. 12). 4. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>"Sheridan Admissions Tax" — Ordinance — Void.</italic> Since there is no other statutory authority which empowers a statutory municipality to impose an admissions tax such as the one being contested in instant case, the "Sheridan Admissions Tax" ordinance is therefore void and the trial court properly entered a judgment dismissing the city of Sheridan's complaint.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Admission of Business Records — Rule.</italic> Crim. P. 26.2 permits the admission of business records which ordinarily would be excluded as hearsay in criminal cases. 2. <bold>RECORDS</bold> — <italic>Activities — Government Agencies — Business Records — Rule.</italic> Activities of government agencies may be considered business records for purpose of Crim. P. 26.2 if the other requirements of the rule are met and the proper foundation is laid. 3. <italic>Police Car Speedometer Calibration Test — Admissible.</italic> In speeding prosecution, record of police car speedometer calibration test was admissible in evidence.

1. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Culmination — Probable Cause Screening.</italic> An indictment is the culmination of the probable cause screening process of the grand jury and that procedure functions as a constitutionally adequate substitute for a preliminary hearing. 2. <italic>Right to Challenge — Probable Cause — Grand Jury Determination —</italic><italic>District Court.</italic> A defendant charged by an indictment is granted the further right to challenge the grand jury's determination of probable cause through a district court proceeding. 3. <bold>CRIMINAL PROCEDURE</bold> — <italic>Preliminary Hearing — Rules.</italic> The Colorado Rules of Criminal Procedure provide for a preliminary hearing only after an information or complaint is filed. 4. <italic>Preliminary Hearing — Request — After Indictment — Not Authorized.</italic> A defendant's request for a preliminary hearing after an indictment has been returned is not authorized. 5. <bold>GRAND JURY</bold> — <italic>Discovery Rights — Liberal — Automatic Access — Negative.</italic> Liberal discovery rights which have been granted to criminal defendants do not guarantee automatic access to everything that transpires before the grand jury. 6. <italic>Evidence — Examination Basis — Probable Cause to Indict.</italic> An examination of evidence before the grand jury is the basis for determining probable cause to indict. 7. <italic>Change — Regulate or Abolish — Constitution — General Assembly.</italic> Article II, section 23 of the Colorado Constitution grants the general assembly the power to change, regulate or abolish the grand jury system.<page_number>Page 399</page_number> 8. <italic>Indictment — Motions to Test — Basis — Record — Argument — Statute.</italic> Section <cross_reference>16-5-204</cross_reference>(4)(n), C.R.S. 1973, provides that motions to test the validity of a grand jury indictment must be based solely on the record and argument of counsel unless there is cause shown for the need for additional evidence; however, term "record" within meaning of statute did not include transcript of portions of grand jury proceedings that involved colloquy between district attorney and grand jury, for purpose of determining whether transcript of colloquy would be made available to defendant for preparation of motion for dismissal due to improper conduct of district attorney. 9. <italic>Transcript — Need — Abuse — Court — Conduct Inquiry — Materiality —</italic><italic>Defense.</italic> In determining whether trial court abused its discretion in finding that cause was shown by defendant for need for transcript of portions of grand jury proceedings that involved colloquy between district attorney and grand jury, reviewing court must conduct an inquiry pursuant to statute requiring a showing of materiality to preparation of defense. 10. <italic>Colloquy — District Attorney — Defendant — Availability — Negative —</italic><italic>— Error of Court — Statute.</italic> While district court was acting within its province in examining colloquy between district attorney and grand jury to determine if grand jury proceedings were properly conducted, the showing made by the defense, in instant case, did not establish cause or need to produce the colloquy as required by section <cross_reference>16-5-204</cross_reference>(4)(n), C.R.S. 1973; therefore, district court erred in ordering that colloquy be made available to defendant for consideration of his motion for preliminary hearing and for dismissal due to improper conduct of district attorney. 11. <italic>Colloquy — District Attorney — Basis — Overturning Indictment —</italic><italic>Disclosure to Defense — Proper.</italic> When a trial court conducts an <italic>in camera</italic> inspection of a transcript containing the colloquy between the district attorney and the grand jury, and concludes that there is more than a speculative basis for overturning an indictment because of improper conduct by the district attorney in securing a true bill, the colloquy may be disclosed to defense counsel. 12. <italic>Colloquy — Defense — Release — Clear — Inappropriate Conduct by</italic><italic>District Attorney.</italic> Only in those cases where clear examples of inappropriate conduct by district attorney may affect validity of defendant's indictment or determination of probable cause should trial court sacrifice confidentiality of grand jury proceeding and release transcript of grand jury colloquy to defense counsel.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Review — Statute — Fiscal Impact — Proposed</italic><italic>Amendment — Misleading — Prejudicial — Replaced.</italic> Pursuant to supreme court's authority under section <cross_reference>1-40-101</cross_reference>(3), C.R.S. 1973 (1979 Supp.), to summarily review a board's action preparing a ballot title, submission clause and summary for initiative petitions to place a proposed constitutional amendment — prohibiting strikes by public employees, as well as work stoppages, slowdowns or interruptions of service — on the ballot, a protested statement in the summary relating to fiscal impact of proposed amendment, which was without adequate basis in the record and therefore misleading and prejudicial is ordered deleted and replaced by appropriate language. 2. <italic>Review — Board's Action — Court — Guided — Three Governing</italic><italic>Principles.</italic> Pursuant to Supreme Court's authority to summarily review a board's action pertaining to titles, submission clause, and summary, the court is guided in its review by three governing principles: (1) it must not in any way concern itself with the merit or lack of merit of the proposed amendment, since, under our system of government, that resolution lies with the electorate; (2) all legitimate presumptions must be indulged in favor of the propriety of the board's action; and (3) only in a clear case should a title prepared by the board be held invalid. 3. <bold>INITIATIVE AND REFERENDUM</bold> — <italic>Petition — Summary — Not True Intent —</italic><italic>Court — Reversal.</italic> Supreme court will reverse action of board which prepared initiative petition for amendment to Constitution only when summary for proposed initiative petition is clearly not a true and impartial statement as to the intent of the proposed amendment.

1. <bold>PLEADING</bold> — <italic>Complaint — Party Plaintiff — Party Defendant — Subject —</italic><italic>Litigated.</italic> It is indispensable, with limited statutory exceptions, that a complaint name a party plaintiff and a party defendant in order to present to a court subject matter that may be litigated. 2. <bold>PARTIES</bold> — <italic>Complaint — Title — Rule.</italic> C.R.C.P. 10(a) expressly provides that in the complaint the title of the action shall include the names of the parties. 3. <bold>NUISANCE</bold> — <italic>Building — Use — Prostitution — Defendant — Named —</italic><italic>"Owner" — — "Operator" — Not in Compliance — Rules of Civil Procedure.</italic> The designations "owner" and "operator" in the caption of a statutory nuisance abatement case — involving building allegedly used as a place of prostitution — without naming them, when those persons were known to the district attorney, were not in compliance with the requirements of the Colorado Rules of Civil Procedure that a party defendant shall be named unless his name is unknown. 4. <bold>PARTIES</bold> — <italic>"Building" — Not Legal Entity — Nullity.</italic> Naming a "building" — not a legal entity — as a party defendant is a nullity. 5. <bold>NUISANCE</bold> — <italic>Public — Parties — Designation — Rules of Civil Procedure.</italic> Designation of parties in an action to abate a public nuisance is governed by the Colorado Rules of Civil Procedure. 6. <italic>No Legal Entity Named — Court — Without Jurisdiction to Proceed.</italic> Where no legal entity was named as a party defendant in a statutory nuisance abatement case, the district court was without jurisdiction to proceed.

1. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Resisting Arrest — Failure to Instruct —</italic><italic>Inartfully Worded — Duty of Court.</italic> In prosecution for assault, evidence in the record supported the defendant's motion for instruction on offense of resisting arrest; and even if defendant's submission was inartfully worded, it was the duty of the trial court to either correct the tendered instruction or to give the substance of it in an instruction drafted by the court; therefore, failure to do so constituted reversible error.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Conversion — Theft — Delay — Counseling Client to</italic><italic>Testify Falsely — False Answer — Disbarred.</italic> Attorney — with a history of disciplinary actions against him, who converted a client's money to his own use and was thereafter convicted of felony theft, who engaged in unreasonable delay in commencing bankruptcy proceedings, who counseled client to testify falsely, and who gave a false answer to bankruptcy judge — — is accordingly disbarred.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Equal Protection — of the Law.</italic> The right to equal protection of the law guarantees only that all parties who are similarly situated receive like treatment by the law. 2. <italic>Distinction — Different Classes — Upheld — Not Arbitrary or</italic><italic>Unreasonable — Exception.</italic> Where the general assembly has made a distinction between different classes of people, that distinction will be upheld providing it is neither arbitrary nor unreasonable. 3. <italic>Statute — Singles Out — Suspect Class.</italic> Only in those cases where the challenged statute singles out individuals in suspect class, such as race, or involves the exercise of a fundamental right, will the supreme court require more than a rational basis to support the legislative classification. 4. <bold>ATTEMPT</bold> — <italic>Classification — Exempt — Mandatory Sentences — Equal</italic><italic>Protection.</italic> Classification, under which attempt crimes are exempted from mandatory sentences for violent crimes statute, is rationally based and passes constitutional muster; it does not violate the equal protection clauses of either the United States or Colorado Constitutions. 5. <bold>CRIMINAL LAW</bold> — <italic>Mandatory Sentencing for Violent Crimes — Separation of</italic><italic>Power — Violation — Negative.</italic> The enactment of the mandatory sentencing for violent crimes statute does not violate the separation of powers doctrine in either the Colorado or United States Constitutions. 6. <bold>COURTS</bold> — <italic>Determine Punishment — Every Case — Negative.</italic> The judiciary is not granted the absolute right to determine punishment in every case. 7. <bold>CRIMINAL LAW</bold> — <italic>Legislature — Authority — Define Crimes — Punishment —</italic><italic>Social Order.</italic> The legislature has the inherent authority to define crimes and to prescribe punishment for criminal violations; this is part of the sovereign power to maintain social order.<page_number>Page 437</page_number>

1. <bold>ROBBERY</bold> — <italic>Testimony — Demand — Victim's Wallet — Weapon — Admission of</italic><italic>Guilt.</italic> Where defendant admitted that he had demanded the victim's wallet and told the victim that he had a weapon, as such, this testimony by defendant constituted an admission of guilt of the offense of simple robbery. 2. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Evidence — Simple Robbery — Theft — Negative.</italic> Where the uncontroverted evidence before the jury established, at a minimum, that the defendant had committed the offense of simple robbery, he was not entitled to an instruction on the crime of theft; the defendant would have been entitled to the theft instruction if there had been a rational basis for the jury to acquit him of the greater offense, <italic>i.e.</italic>, simple robbery but convict him of the lesser offense, <italic>i.e.</italic>, theft. 3. <italic>Theft — Defendant Not Entitled — Error — Harmless.</italic> Because defendant was not entitled to an instruction on theft, the court of appeals was correct in holding the theft instruction error asserted by him to be harmless. 4. <italic>Theft — Request for Instruction — Basis to Acquit — Simple Robbery —</italic><italic>— Statement — Court of Appeals — Disapproved.</italic> The test applicable to defendant's request for an instruction on the crime of theft is whether there existed a rational basis to acquit him of simple robbery but still convict him of theft; the test is <italic>not</italic>, however, as stated by the court of appeals, whether there is a total absence of evidence showing the defendant<page_number>Page 440</page_number> to be guilty of simple robbery; therefore, to this extent, the statement of the court of appeals, in <cross_reference>41 Colo. App. 390</cross_reference>, <cross_reference>590 P.2d 511</cross_reference>, is specifically disapproved.

1. <bold>LIS PENDENS</bold> — <italic>Notice — Filing — Rules — Authorized — Injunctive —</italic><italic>Construction — Violation.</italic> C.R.C.P. 105(f) authorizes filing of a notice of lis pendens with respect to a suit seeking an injunction against construction which allegedly violates protective covenants of record. 2. <italic>Construction of Improvements — Affirmative Relief — Affecting Title —</italic><italic>— Rule.</italic> A proceeding to enforce adherence to criteria with respect to construction of improvements is one "wherein affirmative relief is claimed<italic>affecting the title to real property</italic>" within the meaning of C.R.C.P. 105(f). 3. <italic>Purchaser of Real Property — Title — Subject to Adverse Interests —</italic><italic>Ultimately Adjudicated.</italic> In absence of statute or court rule, under the doctrine of lis pendens a purchaser of real property which is the subject of pending litigation takes title subject to any adverse interests ultimately adjudicated in such litigation. 4. <italic>Notice of Lis Pendens — Distinction — Common Law — Statute — Rule.</italic> The distinction between the term <italic>lis pendens</italic> and the phrase <italic>notice of lis</italic><italic>pendens</italic> is not always observed; the former is a common law term, the latter is regulated by statute or court rule. 5. <bold>REAL PROPERTY</bold> — <italic>Lis Pendens — Doctrine — Foundation.</italic> The doctrine of lis pendens is founded upon the consideration that no suit could be<page_number>Page 443</page_number> successfully terminated if, during its pendency, the real property could be transferred so that it would not be bound by the decree or judgment in the hands of the assignee. 6. <bold>LIS PENDENS</bold> — <italic>Rule — Modifies or Restricts — Common Law.</italic> C.R.C.P. 105(f) does not create the doctrine of lis pendens; it merely modifies or restricts the common law on that subject. 7. <italic>Notice — Filing — Record — Rule and Statute — Elimination of</italic><italic>Surprise.</italic> Under C.R.C.P. 105(f), a notice of lis pendens describing the parties and the property must be filed in the county records in order to give constructive notice of the pending action; and under section<cross_reference>38-35-110</cross_reference>, C.R.S. 1973, the record gives notice to all persons subsequently acquiring any interest in the property; thus, the rule and the statute effectively eliminate the problem of surprise.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Challenges to Legislation — Bases.</italic> Challenges to legislation on the bases that the bill passed by the General Assembly exceeded the limits of the Governor's call for a special session have been successful on two grounds: (1) that the Governor's call was too broad, or (2) that the Governor's call was too specific. 2. <bold>STATUTES</bold> — <italic>Governor's Call — Special Session — Modify — Subject</italic><italic>Matter — — Negative — Postpone — Effective Date — Proper.</italic> Where Governor's call for special session did not tell the legislature how to modify the general subject matter his call conveyed, the General Assembly could retain the July 1, 1978 effective date or it could change the date to any one of a number of possibilities, and where the legislature elected to postpone the effective date of the bill until April 1, 1979, allowing time for review, <italic>held</italic>, under these circumstances, it cannot be said that the Governor exercised power belonging to the legislature; the effective date of H.B. 1589, the determinate sentencing statute, was validly postponed. 3. <italic>Determinate Sentencing Statute — Changing Date — Infringe —</italic><italic>Rule-Making Power — Negative.</italic> Statute changing effective date of determinate sentencing statute did not unconstitutionally infringe on supreme court's rule-making power. 4. <bold>CRIMINAL LAW</bold> — <italic>Sentencing — Interests of Society.</italic> In sentencing, the trial court considers the interests of both society and the defendant. 5. <italic>Sentence — Trial Court — Leeway — Absent Abuse — Modification —</italic><italic>Negative.</italic> The trial court has great leeway in imposing sentence, and absent a clear abuse of discretion, the trial court's decision will not be modified on appeal.<page_number>Page 453</page_number> 6. <bold>BURGLARY</bold> — <italic>First Degree — Sentence — No Abuse of Discretion.</italic> Sentence of ten to 20 years' imprisonment for first-degree burglary was not an abuse of discretion.

1. <bold>UNEMPLOYMENT COMPENSATION</bold> — <italic>Employment Status — Two-Step Analysis —</italic><italic>Determination — Statute.</italic> Section <cross_reference>8-70-103</cross_reference>(21), C.R.S. 1973, requires a two-step analysis in determining the employment status of one claiming unemployment compensation: (1) whether the claimant performed services and received compensation in any particular week; and (2) whether the claimant was "<italic>totally separated</italic>" from his regular employer during the established payroll period. 2. <italic>Employee Benefits — Partially But Not Totally Unemployed — Statutes.</italic> Where substitute printers and stereotypers at newspaper continued to receive employee benefits during periods for which they claimed unemployment compensation, employees were partially, not totally, unemployed as defined by the unemployment compensation statutes. 3. <italic>Employee Benefits — Not Indicative — Unemployment Status — Act —</italic><italic>Wages — Negative.</italic> Employee benefits provided by employer are not indicative of employee's unemployment status under Colorado Employment Security Act; and receipt of such benefits does not constitute wages for the purposes of the Act.<page_number>Page 467</page_number> 4. <italic>Eligibility — Case-By-Case Finding — Standards — Particular Groups —</italic><italic>— Prohibited.</italic> Industrial Commission cannot short-circuit requirement of case-by-case finding of eligibility for unemployment compensation by adopting standards for particular groups of cases. 5. <italic>Able to Work — Available for All Work — Actively Seeking Work —</italic><italic>Guidelines — Eligibility.</italic> The statutory terms "able to work," "available for all work deemed suitable," and "actively seeking work," as provided by the pertinent statutes constitute sufficient guidelines to enable the commission to properly determine the eligibility of one seeking unemployment compensation.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Statement of Officer — Insufficient — Corroborate —</italic><italic>Radar Reading.</italic> Police officer's statement that the defendant "was going over the speed limit. I couldn't say how fast he was going" was insufficient to corroborate the radar reading of 66 miles per hour. 2. <italic>Radar — Conviction — Judicial Notice — Scientific Principles — Use —</italic><italic>— Speed — Operation — Accuracy.</italic> To support a conviction based on the use of a radar device, the court must first take judicial notice of the scientific principles underlying the use of radar to determine vehicular speed; and, as a further foundation for admission of a radar reading, the court must then consider whether the particular radar unit was properly operated and whether the radar unit was accurate at the time the defendant's speed was measured. 3. <italic>Radar Speedgun — Officer — Qualified.</italic> Police officer — who testified that he had been trained to operate radar speedgun by the manufacturer and that he had used similar types of radar devices for nearly two and one-half years and that in addition he had had eight years of experience with other traffic radar devices — was properly found qualified to operate the subject speedgun. 4. <italic>Single Uncalibrated Tuning Fork — Use — Legally Insufficient —</italic><italic>Reading — Radar Device.</italic> Supreme court affirms the district court's holding that the use of a single uncalibrated tuning fork provides a legally insufficient foundation to support a reading taken from a radar device.<page_number>Page 476</page_number> 5. <italic>Radar Device — Tuning Fork Test — Proof by Prosecution — Admissible.</italic> Where a tuning fork test issued to calibrate a radar device, the prosecution must show that two tuning forks have been used, or, alternately, that the single tuning fork has been certified as accurate within one year of the test; and upon such a showing, the trial court may admit the proffered radar evidence.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Dishonesty — Deceit — Misrepresentation — Failure to</italic><italic>Segregate Trust Funds — Disbarred.</italic> Attorney — who was guilty of dishonesty, deceit, and misrepresentation in his dealing with other counsel; who failed to segregate and account for funds given to him in trust; and who in addition, committed other disciplinary violations, all in disregard of the Code of Professional Responsibility — is accordingly disbarred; any application for readmission — after eight years — will be dependent upon a showing by clear and convincing evidence that he has been rehabilitated and is competent to practice law.

1. <bold>HOMICIDE</bold> — <italic>Uniform Mandatory Disposition of Detainers Act — Time Period</italic><italic>— Failure to Bring to Trial — Dismissal.</italic> Where defendant was not brought to trial on a first-degree murder charge within the period required by the Uniform Mandatory Disposition of Detainers Act, trial court acted properly in dismissing the information. 2. <bold>EXTRADITION AND DETAINERS</bold> — <italic>Right to Speedy Trial — Uniform Mandatory</italic><italic>Disposition of Detainers Act — Constitutions.</italic> The "Uniform Mandatory Disposition of Detainers Act," section <cross_reference>16-14-101</cross_reference>, <italic>et seq.</italic>, C.R.S. 1973 (now in 1978 Repl. Vol. 8) is one of several Colorado statutes implementing a defendant's rights to a speedy trial as provided in <italic>Colo. Const.</italic> Art. II, Sec. 16 and <italic>U.S. Const.</italic> Amend. VI and XIV. 3. <italic>Conflict — Continuance Provisions — Uniform Disposition of Detainers</italic><italic>Act — General Speedy Trial Statute — Uniform Act — Controls.</italic> Where there is a conflict between the continuance provisions under the Uniform Mandatory Disposition of Detainers Act and the general speedy trial statute, the provisions of the Uniform Act control. 4. <italic>Uniform Mandatory Disposition of Detainers Act — Grant — Peculiar</italic><italic>Circumstances — Significant.</italic> In determining grant of continuance pursuant to provisions of the Uniform Mandatory Disposition of Detainers Act, the peculiar circumstances of each case are the significant factors. 5. <italic>Uniform Mandatory Disposition of Detainers Act — Time — Burden —</italic><italic>Compliance — Prosecution.</italic> The burden for compliance with the time requirements of the Uniform Mandatory Disposition of Detainer Act is on the prosecution. 6. <bold>CONTINUANCE</bold> — <italic>Seventy Days — Granted — Prosecution — Not Six Months —</italic><italic>No Abuse of Discretion.</italic> Where detainer had been placed against defendant who was accused of killing fellow inmate and who was placed in maximum security at penitentiary, trial court did not abuse its discretion in limiting continuance requested by the prosecution to a period of 70 days rather than six months as requested by the prosecution.<page_number>Page 487</page_number> 7. <bold>EXTRADITION AND DETAINERS</bold>. Section <cross_reference>16-14-104</cross_reference>, C.R.S. 1973, permits only one continuance by the People in a proceeding under the Uniform Mandatory Disposition of Detainers Act.

1. <bold>ARREST</bold> — <italic>Private Residence — Entry — Exigent Circumstances —</italic><italic>Warrantless — Warrant.</italic> A police officer may not enter into a private residence to effect an arrest unless there are exigent circumstances sufficient to justify the warrantless entry or the officers have an arrest warrant. 2. <italic>Warrant — Florida — Probable Cause.</italic> Florida arrest warrant had no effect within the state except to provide probable cause needed to make an arrest of defendant. 3. <italic>Probable Cause — Warrantless — Sufficient — Insufficient —</italic><italic>Warrantless Entry — Absent — Exigent Circumstances.</italic> Although probable cause may be sufficient to justify a warrantless arrest, it is not sufficient to justify a warrantless entry into defendant's premises in the absence of exigent circumstances. 4. <bold>SEARCHES AND SEIZURES</bold> — <italic>Police — Not Legitimately on Premises —</italic><italic>Contraband — Plain View — Warrant — Suppressed.</italic> Where police officers were not legitimately on the premises, the contraband discovered in a closet in plain view must be suppressed; in addition, evidence seized pursuant to the resulting search warrant, which was issued on the basis of the illegal entry, must be suppressed.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Deferred Sentencing — Application — Right to</italic><italic>Preliminary Hearing — Waiver — Negative.</italic> Defendant's application for deferred sentencing, made on the basis of a plea agreement which the trial judge ultimately refused to accept, did not constitute a waiver of defendant's right to a preliminary hearing.

1. <bold>ESCAPE</bold> — <italic>"Knowingly" — "With Specific Intent to Evade the Due Course of</italic><italic>Justice" — Both — Negative.</italic> There is no merit to the assertion that the legislature intended to ascribe to the crime of "escape" <italic>both</italic> the mental culpability element "knowingly" <italic>and</italic> the mental culpability element "with specific intent to evade the due course of justice."<page_number>Page 516</page_number> 2. <bold>HOSTAGES</bold> — <italic>Holding — Defined With Respect to "Escape" — General</italic><italic>Intent — — Statutes.</italic> The crime of "holding hostages", as proscribed by section <cross_reference>18-8-207</cross_reference>, C.R.S. 1973 (now in 1978 Repl. Vol. 8), is defined with respect to the offense of "escape," as proscribed by section <cross_reference>18-8-208</cross_reference>, C.R.S. 1973 (1978 Repl. Vol. 8), and the latter crime, pursuant to legislative changes made to the Colorado Criminal Code in 1977 and 1978, is one of general rather than specific intent; therefore, since no additional mental state is specified for the crime of "holding hostages," that offense is also one of general rather than specific intent. 3. <bold>ESCAPE</bold> — <italic>Crime — Specific Intent — Error — General Intent.</italic> District court erred in concluding that the crime proscribed by section <cross_reference>18-8-208</cross_reference>, C.R.S. 1973 (now in Repl. Vol. 8), to wit, escape, was one of specific intent; its ruling to that effect is therefore disapproved, since the crime is one of general rather than specific intent.

1. <bold>KIDNAPPING</bold> — <italic>Attempted Bank Robbery — Need to Escape — Woman Taken</italic><italic>With Car — Transported Several Blocks — Evidence — Intent.</italic> Where record reflects that defendant and his partner needed to escape scene of attempted bank robbery and that a woman who was putting groceries in her car in an adjacent parking lot and who was taken along with the vehicle was required to give up her car in order to secure her release after she had been transported several blocks by the defendants, <italic>held</italic>, under these circumstances, the evidence shows the intent necessary to support the charge of first-degree kidnapping. 2. <bold>ARREST</bold> — <italic>Valid Warrant — Bank Robbery — Twin of Defendant —</italic><italic>Identification — Agent — Eyewitness — Probable Cause.</italic> Where F.B.I. agents had a valid arrest warrant for a fugitive bank robber who looked enough like defendant to be his twin and manager of apartment building identified the picture as that of defendant, and where agent in charge of bank robbery investigation was present at arrest and had an eyewitness description of defendant and his companion, <italic>held</italic>, under these circumstances, there was sufficient probable cause for arrest. 3. <bold>CRIMINAL EVIDENCE</bold> — <italic>Police Call Scanner — Bank Brochure — Plain View —</italic><italic>Admitted.</italic> Where, at time of arrest, F.B.I. agents saw a police call scanner and a brochure from bank which defendants allegedly conspired to rob, all in plain view in the car, <italic>held</italic>, as such, these items were not the fruits of an illegal arrest, and the trial court properly admitted them into evidence.