Volume 200 — Colorado Reports

1. <bold>WATER RIGHTS</bold> — <italic>Application — Conditional — "Water Matter" — Water Court</italic><italic>— Jurisdiction.</italic> An application for a conditional water right involves a "water matter" over which the water court has exclusive jurisdiction. 2. <italic>Application — Conditional — Notice — Failure to File — No Statement of</italic><italic>Opposition — No Protest — No Correction — Decree — Binding.</italic> Where conditional water right was obtained in full compliance with statutory procedures, landowners had notice of the application but did not file a statement of opposition to the application and did not file a protest to the ruling of the referee, and where landowners did not seek correction of any substantive errors in the judgment and decree of the water court within three years after it was entered but instead took no action until the water had been applied to beneficial use and an application had been filed to make the conditional decree absolute, when they then filed a statement of opposition, <italic>held</italic>, under these circumstances, landowners are bound by the conditional decree. 3. <bold>EMINENT DOMAIN</bold> — <italic>Owner — Conditional — Condemn — Rights-of-Way —</italic><italic>Transport of Water.</italic> The owner of a conditional water right may condemn<page_number>Page 22</page_number> rights-of-way over the lands of others for the purpose of transporting water for beneficial use. 4. <italic>Entry Without Permission — Construction of Facilities — Transporting</italic><italic>Water — Damages.</italic> Where owners of conditional water right entered on property of landowners peacefully but without permission, constructed facilities for the purpose of transporting water without interference or complaint and applied the water to beneficial use, <italic>held</italic>, under these circumstances, landowners could be compensated for damages resulting from the taking in the pending eminent domain proceeding and could seek other damages resulting from the unpermitted entry in an action based on trespass. 5. <bold>WATER RIGHTS</bold> — <italic>Trespass by Owners of Conditional Right — Defense to</italic><italic>Application — Assertion by Landowners — Negative.</italic> Trespass committed by owners of conditional water right — who entered on landowners' property peacefully but without permission, constructed facilities for transporting the water without interference or complaint by landowners and applied the water to beneficial use — could not be asserted by landowners as a defense to application to make conditional water right absolute. 6. <italic>Source — "Unnamed Springs" — Ruling — Statement — True — Confirmed —</italic><italic>Source — Springs.</italic> Where record reflects that source of water was stated in original application to be "unnamed springs," and water referee found such statement to be true in issuing his ruling, and the ruling was confirmed and made a judgment and decree of court, <italic>held</italic>, this, as such, establishes the source of the water to be springs and not a well. 7. <bold>EMINENT DOMAIN</bold> — <italic>Right of Condemnation — Not Dependent — Source — Well</italic><italic>or Spring — Statutory Basis.</italic> The right of condemnation is not dependent upon whether the source of supply is characterized as a well or a spring; and the statutory basis for the right is section <cross_reference>37-86-102</cross_reference>, C.R.S. 1973. 8. <italic>Facility — Transportation of Water — Right of Eminent Domain — No</italic><italic>Prior Easement — Remedy — Temporary Relief.</italic> When a facility for transportation of water is constructed or utilized by one having the right of eminent domain, without prior acquisition of an easement, the remedy of the landowner is limited to temporary relief pending conduct of the eminent domain proceedings by owners of the water right.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Insanity Plea — Withdrawal — Did Not Commence —</italic><italic>Running of Second Six Month Period.</italic> Withdrawal of defendant's insanity plea did not commence the running of a second six month period for trial of defendant's case in chief. 2. <bold>CRIMINAL LAW</bold> — <italic>Speedy Trial — Six Months — Plea of Not Guilty — Statute</italic><italic>— Rule — Same — Insanity.</italic> A defendant must be brought to trial within six months from the date of the entry of a plea of not guilty, except as otherwise provided by section <cross_reference>18-1-405</cross_reference>(6)(a), C.R.S. 1973 (1978 Repl. Vol. 8); and this rule equally applies where a defendant pleads not guilty by reason of insanity. 3. <italic>Six-Month Period — Trial — Exclusion — Psychiatric Examination —</italic><italic>Motion to Dismiss — Failure of Speedy Trial.</italic> Where defendant moved to vacate trial date and requested a continuance on July 16, the new six-month period for bringing defendant to trial began to run and — with a 35-day period of exclusion for psychiatric examination excluded — required that defendant be brought to trial before February 27; accordingly, defendant's motion to dismiss for failure to comply with speedy trial statute should have been granted.

1. <bold>INITIATIVE AND REFERENDUM</bold> — <italic>Transfer of Real Estate — Test.</italic> With reference to titles, summary, and submission clause fixed by the Initiative Title Setting Review Board concerning proposed initiative on transfer of real estate, the test to be applied is as follows: (1) the court must not in any way concern itself with the merit or lack of merit of the proposed amendment since that resolution rests 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. 2. <italic>Titles — Summary — Submission Clause — Supreme Court — Limited — Unfair</italic><italic>— Clear — Statute.</italic> Under section <cross_reference>1-40-102</cross_reference>(3), C.R.S. 1973 (1979 Supp.), the supreme court, in reviewing the language of the titles, summary, and submission clause fixed by the Initiative Title Setting Review Board, is limited to determining whether the titles, summary, and submission clause are "unfair" or fail to "clearly express the true meaning and intent" of the proposed constitutional amendment. 3. <italic>Titles — Summary — Submission Clause — Supreme Court — Limitation —</italic><italic>Intent of Amendment.</italic> The supreme court can only consider whether the titles, summary, and submission clause reflect the intent of the amendment, not whether they reflect all possible problems that may arise in the future in applying the language of the proposed amendment. 4. <italic>Titles — Summary — Submission Clause — Supreme Court — Function —</italic><italic>Rephrase — Negative.</italic> It is not the function of the supreme court to rephrase the titles, summary, and submission clause so that the language used is the best possible to express the meaning and intent of the proposed amendment. 5. <italic>Proposed Amendment — Retroactive — Future — Controversy — Judicial</italic><italic>Determination — Irrelevant — Accuracy of Language.</italic> Whether the proposed amendment will have a retroactive application is a matter to be adjudicated in the future; thus, if a controversy arises in a specific factual context, then judicial determination of retroactive application may be appropriate,<page_number>Page 41</page_number> but it is not relevant to the determination of the accuracy of the language of the titles, summary, and submission clause. 6. <italic>Proposed Amendment — Failure to Mention — Statute — No Effect —</italic><italic>Acceptability — Titles — Summary — Submission Clause.</italic> Failure to mention the existence of a statute addressing the same or similar subject as that of the proposed amendment does not have any effect on the acceptability of the titles, summary, and submission clause; that language need only express the intent and meaning of the proposed constitutional amendment. 7. <italic>Failure to Include — Sales — "Subject To" — "Assumptions" — Accuracy of</italic><italic>Language — Unaffected.</italic> Failure of board to include language distinguishing sales "subject to" existing financing from "assumptions" of existing financing does not affect the accuracy of the language of the titles, summary, and submission clause so as to cause that language to fail to state clearly the meaning and intent of the proposed amendment; the language formulated by the Board directly parallels the language of the proposed amendment, and thus reflects its meaning and intent. 8. <italic>Title — Summary — Submission Clause — Prejudice in Favor of Amendment —</italic><italic>Negative.</italic> Title, summary and submission clause of initiative proposing constitutional amendment did not contain language likely to create prejudice in favor of amendment where that language was taken verbatim from the proposed amendment. 9. <italic>Summary and Submission Clause — Amendment — No Direct Fiscal Impact</italic><italic>on State Government.</italic> On review of decision of Initiative Title Setting Review Board regarding title, summary and submission clause fixed by Board for proposed initiative on transfer of real estate, record supports statement of Board that proposed amendment "would have no direct fiscal impact on state government."

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Previously Disciplined — Violations — Code —</italic><italic>Professional Responsibility — Suspension — Additional Suspension.</italic> Attorney — who had been disciplined on two previous occasions for violations of the Code of Professional Responsibility which resulted in a one year suspension, and who, shortly after the one year suspension ended, failed to comply with the conditions which were prerequisites to his reinstatement, and who engaged in the unauthorized practice of law and committed other violations of the Code of Professional Responsibility — is accordingly suspended from the practice of law for an additional period of one year. 2. <italic>Permission to Practice Law — Prerogative — Supreme Court.</italic> Granting a person permission to practice law is the sole prerogative of the Supreme Court of Colorado. 3. <italic>Suspension — Practice of Law — Violation — Code — Professional</italic><italic>Responsibility.</italic> Attorney who practiced law while under suspension violated Code of Professional Responsibility.<page_number>Page 45</page_number> 4. <bold>ATTORNEY AND CLIENT</bold> — <italic>Fees in Excess of Arrangement — Release of Lien —</italic><italic>Refusal to Account — Refusal to Pay — Violation — Code of Professional</italic><italic>Responsibility.</italic> Attorney — who collected fees in excess of those set forth in contingency fee arrangement; who released judgment lien of client debtor without notice to client; who, thereafter, withdrew as counsel, refused to account to client, and failed to pay client funds to which he was entitled until after complaint was made to grievance committee — was in violation of the provisions of the Code of Professional Responsibility.

1. <bold>ARREST</bold> — <italic>Warrant — Affidavit — Probable Cause — Valid — Entire State —</italic><italic>Statute.</italic> Under section <cross_reference>16-3-108</cross_reference>, C.R.S. 1973 (1978 Repl. Vol. 8), an arrest warrant based on an affidavit establishing probable cause is valid throughout the state of Colorado and may direct any peace officer to arrest the individual named in the warrant. 2. <italic>Valid — Outside of County — Jurisdiction — Enlist Aid — Officials With</italic><italic>Authority — County.</italic> Officers possessing a valid arrest warrant may make an arrest outside of the county in which they have jurisdiction provided that they enlist the aid of officials who have authority to make an arrest in the county where the arrest is made; thus, where Larimer County arresting officers obtained a warrant and enlisted the aid of both the Greeley police and the Weld County Sheriff's office, both of whom were authorized to execute arrest warrants in Weld County, and where officers with authority to arrest in Weld County were present during the defendant's arrest, the order declaring the arrest to be illegal and suppressing evidence seized incident to the arrest was properly reversed. 3. <italic>Warrant — Execution — Immaterial — Lawful Authority — Scene —</italic><italic>Participation.</italic> It is immaterial who executes the arrest warrant provided that individuals with lawful authority to make an arrest are actually present at the scene of the arrest and participate in the arrest process.

1. <bold>ARBITRATION</bold> — <italic>Inconsistent Actions — Parties — Litigation — Intent —</italic><italic>Waiver.</italic> A trial court is required to make a factual determination that inconsistent actions of the parties when they pursue litigation manifest an intent to waive an arbitration clause. 2. <italic>Clause — Waived — Litigation — Inconsistent.</italic> An arbitration clause may be waived by action taken in litigation which are not consistent with the arbitration clause. 3. <italic>Breach of Lease Agreement — Actions Taken in Litigation — Sufficient</italic><italic>— Waiver of Arbitration Clause.</italic> Where landlord filed complaint for damages for breach of lease agreement, tenant filed an answer, landlord unsuccessfully moved for summary judgment, both parties then amended their pleadings and tenant requested jury trial, and where more than one year after commencement of litigation landlord retained new counsel and filed motion for determination of jurisdiction and availability of arbitration based on mandatory arbitration provisions in lease agreement, which clause landlord claimed only then to have discovered,<italic>held</italic>, under these circumstances, the actions of the parties were sufficient to waive the mandatory arbitration clause.

1. <bold>EXTRADITION AND DETAINERS</bold> — <italic>Failure — Governor's Personal Review —</italic><italic>Warrant — Not Invalid.</italic> Alleged failure of governor to personally review requisition documents did not render governor's extradition warrant invalid. 2. <bold>APPEAL AND ERROR</bold> — <italic>Raised for First Time — Not Considered.</italic> Arguments raised for the first time on appeal would not be considered by the supreme court.

1. <bold>WITNESSES</bold> — <italic>Subpoena — Judicial — Statute — Taxpayer.</italic> Section<cross_reference>39-21-112</cross_reference>(3), C.R.S. 1973, provides for a judicial subpoena to third parties when the Department of Revenue is unable to obtain information directly from the taxpayer. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>Expectation of Privacy — Protection — Unreasonable</italic><italic>Governmental Intrusion — Constitutions.</italic> The United States and Colorado Constitutions protect an individual's reasonable expectation of privacy from unreasonable governmental intrusion. 3. <bold>SEARCHES AND SEIZURES</bold> — <italic>Expectation of Privacy Test — Katz v. United</italic><italic>States — Colorado Constitution — Limit.</italic> The expectation of privacy test — set forth in the United States Supreme Court case of <italic>Katz v. United States</italic>,<cross_reference>389 U.S. 347</cross_reference>, <cross_reference>88 S.Ct. 507</cross_reference>, <cross_reference>19 L.Ed.2d 576</cross_reference> — as a measure of unreasonable seizures under the Colorado Constitution gives the taxpayer in instant case the right to challenge a subpoena to the bank for his records, and has been applied in Colorado to reasonably limit governmental searches and seizures. 4. <bold>BANKS AND BANKING</bold> — <italic>Depositor — Expectation of Privacy — Government</italic><italic>Agents — Not Barred — Records.</italic> A bank depositor has a reasonable expectation of privacy in the bank records of his financial transactions; this, however, does not bar government agents from obtaining bank records. 5. <italic>Records — Governmental Access — Legal Process — Customer — Standing —</italic><italic>Expectation of Privacy.</italic> Governmental access to bank records is limited in that appropriate legal process must be used to obtain them, and the bank customer has standing to assert his expectation of privacy in the records during the legal process. 6. <italic>Records — Expectation of Privacy — Rules — Language — Intervention.</italic> The right of an expectation of privacy in bank records satisfies the rule requirement of C.R.C.P. 24(a) pertaining to intervention, namely, "interest relating to the property or transaction which is the subject of the<page_number>Page 95</page_number> action"; particularly, since the taxpayer's ability to protect that interest may be impaired or impeded if he is not allowed to intervene. 7. <bold>PRACTICE AND PROCEDURE</bold> — <italic>Intervention — Proper — Bank Records — Privacy</italic><italic>Interest — Taxpayer — Rules.</italic> The taxpayer's privacy interest in his bank records cannot be adequately represented when, as in instant case, the bank, the custodian of the records, chose not to appear at the subpoena hearing; thus, trial court's order allowing the taxpayer's intervention was proper because the taxpayer's expectation of privacy is an interest sufficient to support intervention of right under C.R.C.P. 24(a)(2). 8. <bold>BANKS AND BANKING</bold> — <italic>Intervention — Expectation of Privacy — Bank</italic><italic>Records — Standing — Governmental Access — Director — Justify — Access —</italic><italic>Rules — Statute.</italic> Once the court allows intervention, a taxpayer with an expectation of privacy in his bank records has standing to raise the legitimacy of governmental access to the records in a motion to quash the subpoena for the records pursuant to C.R.C.P. 45(b); accordingly, the motion to quash requires the director of the Department of Revenue to justify access to the taxpayer's bank records under the standards of section <cross_reference>39-21-112</cross_reference>(3), C.R.S. 1973. 9. <bold>ADMINISTRATIVE LAW AND PROCEDURE</bold> — <italic>Subpoena — Probable Cause — Not</italic><italic>Required.</italic> Probable cause is not required to support an administrative subpoena. 10. <bold>RECORDS</bold> — <italic>Seizure — Subpoena — Statute — Oklahoma Press Publishing</italic><italic>Company v. Walling — Standards.</italic> Section <cross_reference>39-21-112</cross_reference>(3), C.R.S. 1973, allowing the judicial subpoena and the documents submitted by the Department of Revenue to support the subpoena, does meet the following standards enunciated by the United States Supreme Court in <italic>Oklahoma Press</italic><italic>Publishing Company v. Walling</italic>, <cross_reference>327 U.S. 186</cross_reference>, <cross_reference>66 S.Ct. 494</cross_reference>, <cross_reference>90 L.Ed. 614</cross_reference>, where court held that an administrative agency's seizure of records is reasonable if (1) the investigation is for a lawfully authorized purpose; (2) the information sought is relevant to the inquiry; and (3) the specificity of required documents is adequate but not excessive for the inquiry. 11. <bold>TAXATION</bold> — <italic>Director — Duty to Enforce — State Tax Laws — Statute.</italic> The director of the Department of Revenue is required by section <cross_reference>39-21-112</cross_reference>(1), C.R.S. 1973 (1979 Supp.), to enforce the state tax laws. 12. <bold>WITNESSES</bold> — <italic>Subpoena — "Lawfully Authorized Purpose" — Correctness of</italic><italic>Return — "Relevant" — Enforcement — Tax Laws.</italic> A subpoena seeking information to enforce the tax laws is a "lawfully authorized purpose," and information relating to the correctness of the taxpayer's return or the amount of the taxpayer's income is "relevant" to the enforcement of the tax laws. 13. <italic>Investigation — Tax Liability — Subpoena — Limited — Relevant —</italic><italic>Standards — Compliance — Oklahoma Press Publishing Company v. Walling.</italic> Where Department of Revenue was investigating personal and business tax liability and the subpoena issued by the Department limited the scope of the records by date, the documents sought were relevant and identified specifically enough to meet the United States Supreme Court standards set<page_number>Page 96</page_number> forth in <italic>Oklahoma Press Publishing Company v. Walling</italic>, <cross_reference>327 U.S. 186</cross_reference>,<cross_reference>66 S.Ct. 494</cross_reference>, <cross_reference>90 L.Ed. 614</cross_reference>. 14. <italic>Subpoena — Civil — Use — Criminal Action — Proper — U.S. v. LaSalle</italic><italic>National Bank.</italic> The use of a civil subpoena in Department of Revenue's tax investigation is proper even though the Department intends to pursue a criminal action against the taxpayer and the records sought are for the criminal investigation; and, as such, is in accord with the United States Supreme Court view as set forth in <italic>United States v. LaSalle National Bank</italic>,<cross_reference>437 U.S. 298</cross_reference>, <cross_reference>98 S.Ct. 2357</cross_reference>, <cross_reference>57 L.Ed.2d 221</cross_reference>. 15. <bold>CONSTITUTIONAL LAW</bold> — <italic>Subpoena Process — Violation — Fifth Amendment —</italic><italic>Negative.</italic> There is no merit to taxpayer's contention that the statutory subpoena process compels him to be a witness against himself in violation of the Fifth Amendment, since the compulsion is on the bank, not on the taxpayer directly.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Presumptive Sentencing Law — Legislative</italic><italic>Postponement — Separation of Powers.</italic> Legislative postponement of the effective date of House Bill 1589, the presumptive sentencing law, comported with the separation of powers doctrine under Article III of the Colorado Constitution. 2. <bold>COURTS</bold> — <italic>Presumptive Sentencing Law — Infringe — Rule Making Power —</italic><italic>Supreme Court — Negative.</italic> Prospective provisions of section 25 of House Bill 1589, the presumptive sentencing law, did not constitutionally infringe upon the rule making power of the supreme court, under Article VI, section 21, of the Colorado Constitution. 3. <bold>CRIMINAL LAW</bold> — <italic>Re-Sentencing — Denied — Presumptive Sentencing</italic><italic>Provisions — House Bill 1589.</italic> Defendant is not entitled to re-sentencing under the presumptive sentencing provisions of 1977 version of House Bill 1589, and the trial court properly could render a summary disposition of defendant's motion for post-conviction relief without a hearing, since the motion raised questions of law only.<page_number>Page 108</page_number>

1. <bold>CRIMINAL LAW</bold> — <italic>Sentencing — Discretionary Act.</italic> Sentencing by its very nature is a discretionary act that is not subject to scientific precision. 2. <italic>Sentences — Review — Objective — Correction.</italic> One of the objectives of appellate review of sentences is the correction of sentences that are excessive in length, having regard for the nature of the offense, the character of the offender, and the protection of the public. 3. <bold>PROBATION AND PAROLE</bold> — <italic>Desirable — Rehabilitative — Deters</italic><italic>Criminality — Confinement — Necessary — Deterrence.</italic> Probation is oftentimes a desirable disposition in criminal cases because it promotes a rehabilitative program that prevents or deters subsequent criminality by the offender and fosters his productive re-integration into the community at minimal cost to the public fisc; however, while rehabilitation may be the preferred method for preventing crime, an extended term of confinement is sometimes necessary in order to protect the public from further criminal activity by the offender and to adequately provide for individual deterrence and correction. 4. <bold>CRIMINAL LAW</bold> — <italic>Sentencing — Public Interest — Safety — Deterrence —</italic><italic>Focal Point.</italic> The public interest in safety and deterrence is properly a focal point of the sentencing decision in crimes of grave personal violence or abuse, particularly when committed by a repeat offender; and in such cases the court should strive for a sentencing result that addresses both the need of society for protection and the need of defendant for correction. 5. <italic>Sentence — Extended Duration — Record — Justification.</italic> When a sentence of an extended duration is imposed, the record must establish a clear justification in fact for the trial judge's action. 6. <italic>Sentencing — Eighteen to Thirty — Justified — Sexual Abuse — Serious</italic><italic>Acts — Use of Gun — Prior Convictions — Public Safety.</italic> Where record<page_number>Page 111</page_number> reflects that the offenses to which defendant pled guilty consisted of serious acts of sexual abuse perpetrated against two separate victims on two separate occasions, and on each occasion the defendant threatened and caused submission of the victim by the use of a gun, and the character of the defendant was such that probation was not a viable alternative of the court, since he had previously been convicted of larceny and forcible rape and had escaped from jail during the pendency of the charges, <italic>held</italic>, since the public interest in safety and deterrence was of ranking importance to the sentencing judge under the circumstances in this case, there was a clear justification for the concurrent sentences of eighteen to thirty years in the state penitentiary. 7. <bold>COURTS</bold> — <italic>Presumptive Sentencing Provisions — Infringe — Rule-Making</italic><italic>Power of Supreme Court — Negative.</italic> Governor's call for the extraordinary session, which postponed the effective date of House Bill 1589 (presumptive sentencing provisions), did not unconstitutionally usurp the law-making power of the General Assembly; moreover, the prospective provisions of section 25 of House Bill 1589, as amended in March 1979, did not unconstitutionally infringe upon the rule-making power of the supreme court.

1. <bold>MOTOR VEHICLES</bold> — <italic>Revocation Proceeding — Habitual Offender — Criminal</italic><italic>Proceeding — Negative.</italic> A revocation proceeding to revoke the license of an habitual offender under section <cross_reference>42-2-203</cross_reference>, C.R.S. 1973, is not a criminal proceeding. 2. <italic>Revocation Proceeding — Purposes.</italic> The purposes of a revocation proceeding are to deny the privilege of operating a motor vehicle to those persons who have demonstrated by their conduct and record an indifference to the safety and welfare of others and to impose an increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of the traffic laws. 3. <italic>Revocation Proceeding — No Fines — No Loss of Liberty.</italic> In a revocation proceeding, no fines are imposed and no loss of liberty is involved. 4. <italic>Habitual Offender — Revocation of Driver's License — Five Years.</italic> The results of an adjudication as a habitual offender are the revocation of a person's driver's license and an order prohibiting operation of a motor vehicle in Colorado for a period of five years.<page_number>Page 116</page_number> 5. <italic>Criminal Proceeding — Driver — Collateral Attack — Order of</italic><italic>Revocation — Prohibited.</italic> In criminal proceeding brought under section<cross_reference>42-2-206</cross_reference>, C.R.S. 1973, driver of motor vehicle was not entitled to collaterally attack the 1975 order revoking his driver's license on the bases that, in entering the order, the hearing officer had improperly considered a municipal reckless driving conviction. 6. <italic>Prosecution for Operation of Vehicle Under Revocation — Collateral</italic><italic>Attack — Jurisdiction — Constitutional Rights.</italic> In prosecution for operating a motor vehicle under revocation as an habitual traffic offender, the defendant cannot attack the substantive validity of the 1975 revocation order, because collateral attack is allowed only with respect to judgments or orders: (a) which are void because of defects of personal or subject matter jurisdiction, rather than merely erroneous or voidable; or (b) which are entered in violation of the constitutional rights of the party seeking to maintain the collateral attack. 7. <bold>ADMINISTRATIVE LAW AND PROCEDURE</bold> — <italic>Agency — Jurisdiction — Order —</italic><italic>Erroneous — Obedience — Mandatory.</italic> When an administrative agency has jurisdiction over the person and subject matter in question, and when the agency is not proceeding contrary to the requirements of the state or federal constitution, the fact that the agency's order is erroneously or improvidently granted does not justify failure to obey that order.

1. <bold>EXTRADITION AND DETAINERS</bold> — <italic>Warrant — Valid — Authentication — Made —</italic><italic>Properly Issued.</italic> Appellant's contention — that it was error to discharge writ of habeas corpus because the documents supporting the extradition demand were not properly authenticated and because the Governor did not personally sign or issue the governor's warrant for extradition — is without merit; the governor's warrant is valid; moreover, the authentication required by statute was made, and the governor's warrant was properly issued. 2. <italic>Authentication — Requisition — Signed by Governor — Compliance With</italic><italic>Statute — Request — Valid.</italic> In an extradition proceeding, the only authentication required by statute is an authentication by the executive authority of the demanding state; here, the requisition sent by Nebraska includes a certification of authenticity of the included documents; also, the requisition is signed by the Governor of Nebraska and therefore complies with the requirements of section <cross_reference>16-19-104</cross_reference>; the extradition request is therefore valid. 3. <bold>HABEAS CORPUS</bold> — <italic>Requisition Documents — Compliance — Statute — Demand —</italic><italic>Governor's Warrant — Writ — Discharged.</italic> Since the requisition documents from the state of Nebraska comply with the statutory requirements for a demand within the purview of section <cross_reference>16-19-104</cross_reference>, and the governor's warrant was properly issued, the order of the trial court discharging the writ of habeas corpus filed by appellant is therefore affirmed.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Statement — Admissible — Voluntary.</italic> For a defendant's statement to be admissible, it must be voluntary. 2. <italic>Confession — Voluntariness — Preponderance.</italic> The People must establish the voluntariness of a confession by a preponderance of the evidence. 3. <bold>WITNESSES</bold> — <italic>Psychiatric Testimony — Mental Ability — Free and</italic><italic>Intelligent Decisions — Admissible.</italic> Expert psychiatric testimony regarding a defendant's mental ability to make free and intelligent decisions at the time of an inculpatory statement is admissible.<page_number>Page 154</page_number> 4. <italic>Expert — Failure to Examine — Subject — Disqualification — Negative.</italic> The fact alone that an expert witness has not examined the subject of his opinion does not disqualify him from expressing an opinion. 5. <italic>Expert Opinion — Court — Determination — Credibility — Weight.</italic> Once the expert opinion is given, the trial court determines the expert's credibility and the weight to be afforded his opinion. 6. <bold>APPEAL AND ERROR</bold> — <italic>Supreme Court — Bound — Findings — Evidence —</italic><italic>Record.</italic> On review, the supreme court is bound by the trial court's findings of fact where they are supported by adequate evidence in the record. 7. <bold>CRIMINAL LAW</bold> — <italic>Statements — Involuntary — Mental State — Impaired —</italic><italic>Finding — Support.</italic> Testimony of treating doctor, nurse and detective that defendant's behavior appeared rational did not conflict with toxicologist's testimony describing morphine intoxication; thus, trial court's finding that defendant's mental state was impaired sufficiently that her statements were involuntary is supported by the record.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Conflicts of Interest — Failure to Consult —</italic><italic>Illegal and Excessive Fee — Deficient Petition — Public Censure.</italic> Attorney-respondent — whose conduct constituted an open and blatant violation of DR 5-105, relating to conflicts of interest; who failed to adequately consult privately with his client to determine if she desired to pursue certain litigation and to advise her of the consequences of pursuing the various options available to her; who violated DR 2-106(A) by charging an illegal and excessive fee; and who filed a deficient petition in violation of DR 6-101(A)(2) — is publicly censured.

1. <bold>CRIMINAL LAW</bold> — <italic>Sentencing — Discretionary.</italic> Sentencing by its very nature is a discretionary decision which requires the weighing of various factors and striking a fair accommodation between the defendant's need for rehabilitation or corrective treatment and society's interest in safety and deterrence. 2. <italic>Sentencing — Rational Selection — Alternatives.</italic> The discretion implicit in the sentencing decision is not an unrestrictive discretion devoid of reason or principle; on the contrary, the sentencing decision should reflect a rational selection from various sentencing alternatives in a manner consistent with the dominant aims of the sentencing process. 3. <italic>Sentencing — Purposes — Code.</italic> The Colorado Criminal Code, section<cross_reference>18-1-102.5</cross_reference>(1), C.R.S. 1973 (1978 Repl. Vol. 8, 1979 Supp.) acknowledges the manifold purposes of sentencing: (a) to punish a convicted offender; (b) to assure fair and consistent treatment of all convicted offenders; (c) to prevent crime and promote respect for the law; (d) to promote rehabilitation. 4. <italic>Basic Reasons — Selection of Sentence — Failure of Sentencing Judge</italic><italic>— Obstacle — Review.</italic> The failure of a sentencing judge to state on the record the basic reasons for the selection of a particular sentence creates a burdensome obstacle to effective and meaningful appellate review of sentences. 5. <italic>Sentence — Appellate Review — Objective — Duty of Sentencing Judge —</italic><italic>Record — Reasons — Explanation.</italic> If appellate review of felony sentences is to satisfy its stated objectives, it requires that the sentencing judge state on the record the basic reasons for imposing the sentence; and this requirement is particularly essential in those cases where the sentence involves a very restrictive form of deprivation, such as an extended term of confinement to a correctional facility; moreover, the requirement of a sentencing explanation for felony sentences serves as an invaluable aid to the appellate court on review.<page_number>Page 164</page_number> 6. <italic>Sentence — Correctional Facility — Duty of Judge — State on Record —</italic><italic>Reasons for Imposition.</italic> In felony convictions involving the imposition of a sentence to a correctional facility, reviewing court hereafter requires that the sentencing judge state on the record the basic reasons for the imposition of sentence; the statement of reasons need not be lengthy, but should include the primary factual considerations bearing on the judge's sentencing decision. 7. <italic>Sentencing Hearing — Five Prior Felony Convictions — Sentences — Not</italic><italic>Excessive.</italic> Where, at the sentencing hearing in instant case, the defendant, although a young man of 25 years, had already accumulated five prior felony convictions on his record and was ineligible for indeterminate sentencing, <italic>held</italic>, under these circumstances, reviewing court concludes that the pre-sentence report and other evidence in the record afford substantial justification for the sentences imposed, namely, a concurrent sentence of six to ten years upon conviction of second-degree burglary, third-degree burglary, and theft of property under $50 in value; the sentences imposed were not excessive. 8. <italic>Re-Sentencing — Claim — Lack of Merit.</italic> Defendant's claim — that he is entitled to re-sentencing under the presumptive-sentence provisions of House Bill 1589, Colo. Sess. Laws 1977, ch. 216, 18-1-105 at 867 — is without merit; these issues have heretofore been resolved adversely to the defendant in <italic>People v. McKenna</italic>, <cross_reference>199 Colo. 452</cross_reference>, <cross_reference>611 P.2d 57</cross_reference> (1980).

1. <bold>WATER RIGHTS</bold> — <italic>Rejection of Well Application — Lack of Specific</italic><italic>Findings — Available Water — Remanded.</italic> Where trial court affirmed commission's rejection of well application but did not make specific findings on the amount of water available for appropriation in designated circle and the amount of water subject to claims by prior appropriators,<italic>held</italic>, because these factors play a central role in the commission's 40% depletion in 25 years formula, supreme court is not in a position to review the trial court's determination that the designated circle was overappropriated; accordingly, the case is remanded to the trial court to make further findings on the issues set forth in instant opinion. 2. <italic>Conditional Permit — Expiration — Vested Right — Negative — Statute.</italic> The Colorado Ground Water Management Act, section <cross_reference>37-90-101</cross_reference>, C.R.S. 1973,<italic>et seq.</italic>, does not contemplate that appropriators may acquire a vested right in water put to beneficial use after their conditional permits have expired. 3. <bold>ESTOPPEL</bold> — <italic>Ground Water — Prior Formula — Failure to Rely — New Formula</italic><italic>— Application.</italic> Where applicant for construction of a well did not reasonably rely on Ground Water Commission's prior formula for computation of available ground water in his area, the commission was not estopped from substituting its new formula for the standard formula in reviewing the application.<page_number>Page 171</page_number>

1. <bold>CONTRACTS</bold> — <italic>Parties — Intent — Form — Lawful Agreement.</italic> In the absence of evidence justifying a contrary inference, it will be presumed that the parties to a contract intended to form a lawful and enforceable agreement. 2. <bold>CORPORATIONS</bold> — <italic>"Best Efforts" — Board — Conflict — Negative.</italic> Under rule that it would be presumed that parties to contract intended to form a lawful and enforceable agreement, contract clause requiring board of directors to use its "best efforts" to obtain from security holders their approval of sale of stock of wholly owned subsidiary would not be taken as imposing on board of directors any obligation which would conflict with their legal duties to the corporation's security holders. 3. <italic>Board of Directors — Duties.</italic> Duties of board of directors include fidelity, good faith and prudence with respect to the interests of security holders, as well as the duty to exercise independent judgment with respect to matters committed to the discretion of the board and lying at the heart of the management of the corporation. 4. <italic>Determination of Directors — Corporation Law — State of Delaware —</italic><italic>Terms and Conditions — Best Interests.</italic> Pursuant to § 271(a) of the General Corporation Law of the State of Delaware," the corporation's directors were required to determine whether the terms, conditions, and consideration set forth in the 1974 purchase agreement were "expedient and for the best interests of the corporation." 5. <italic>Directors — Continuing Duty — Independent Judgment — Terms and</italic><italic>Conditions — Agreement — Best Interests.</italic> Directors may not lawfully agree to abrogate the continuing duty to exercise their independent judgment with respect to their obligation to determine whether the terms, conditions, and<page_number>Page 181</page_number> consideration set forth in the 1974 purchase agreement were expedient and for the best interests of the corporation. 6. <italic>"Best Efforts" Clause — Purchase Agreement — Changed Circumstances —</italic><italic>Best Interests — Negative.</italic> The "best efforts" clause contained in purchase agreement did not bind corporation's board of directors to recommend security holder approval of said agreement when, subsequent to the execution of the agreement and the directors' initial determination under § 271(a), the directors inquired into changed circumstances and determined, pursuant to the exercise of their independent good faith judgment, that the terms of the agreement were no longer in the security holders' best interests.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Lack of Warrant — Violation — Constitutions.</italic> A search without a warrant is presumed to violate the federal and state constitutional provisions forbidding unreasonable searches. 2. <italic>Warrantless — Burden on People — Exception.</italic> The People have the burden of proving that a warrantless search falls within a recognized exception to the warrant requirements.<page_number>Page 188</page_number> 3. <bold>ARREST</bold> — <italic>Warrant — Entry — Home — Absent — Exigent Circumstances.</italic> Absent exigent circumstances, it is necessary to obtain an arrest warrant in order to justify entry into a private home to make an arrest. 4. <italic>Prevent Escape — Prevent Destruction of Contraband — Exigent</italic><italic>Circumstances.</italic> Where record indicates urgent need by police for prompt arrest to prevent escape and possible destruction of contraband, <italic>held</italic>, under such circumstances, exigent circumstances existed to enter residence to make arrests; particularly where there was no realistic opportunity to seek a search warrant before the exigencies of the matter made it necessary to enter the dwelling. 5. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Flushing Toilet — Investigation — Safety —</italic><italic>Plastic Bag — Police Action — Constitutional — Search Warrant — Cocaine.</italic> Where, shortly after police lawfully entered residence, the sound of the flushing toilet alerted one of the agents that another person was on the premises, and that he might be destroying contraband, additional investigation was necessary in interest of protecting the safety of officers and to prevent destruction of contraband; investigation disclosed one of the defendants in the act of attempting to flush contents of plastic bag down the toilet, and police action which led to this discovery was consistent with constitutional requirements; accordingly, the plastic bag should not have been suppressed, and information as to circumstances of its discovery could properly be used in an affidavit to support an application for a warrant to search the premises for cocaine. 6. <italic>Cocaine — Probable Cause — Residence — Disposal — Flushing — Affidavits</italic><italic>— Information — Search Warrant.</italic> Where, before entering residence to make arrests for sale of cocaine, police agents had probable cause to believe that quantity of cocaine had just arrived there, and once inside residence, agent discovered defendant apparently disposing of a substance packaged in a plastic bag by flushing it down the toilet, <italic>held</italic>, as such, affidavits containing this and other information were sufficient to show probable cause for issuance of a search warrant to search residence for cocaine. 7. <bold>WORDS AND PHRASES</bold> — <italic>Probable Cause.</italic> Probable cause deals with probabilities which are not technical, but are factual and practical considerations of every day life on which reasonable and prudent men act. 8. <bold>SEARCHES AND SEIZURES</bold> — <italic>Probable Cause — Reasonable Inferences —</italic><italic>Magistrate — Common Sense — Determination.</italic> A magistrate may draw reasonable inferences and may use his common sense in making a determination of probable cause. 9. <italic>Warrant — Described Items — Not Overbroad — Fourth Amendment.</italic> Search warrant which described the items to be seized to include cocaine and other dangerous drugs and narcotic drugs, vessels, implements, and furniture was not overbroad and did not violate the Fourth Amendment.

1. <bold>AUTOMOBILES</bold> — <italic>Right to Drive — Highways — Fundamentality — Negative.</italic> The right to drive an automobile upon the public highways of Colorado does not enjoy the selective status of fundamentality. 2. <italic>Driver's License — Protection — All Governmental Interference —</italic><italic>Negative.</italic> The issuance of a driver's license does not confer upon the licensee a right that is independently entitled to protection against any and all governmental interference or restriction. 3. <bold>CONSTITUTIONAL LAW</bold> — <italic>Right to Travel — Fundamental — Revocation —</italic><italic>Driver's License — Burden — Negative.</italic> While the right to travel interstate is without question a fundamental right under the United States Constitution, revocation of appellant — driver's license does not burden this fundamental right. 4. <italic>Revocation of License — No Significance — Incidental Disadvantage —</italic><italic>Travel Options.</italic> Revocation of appellant's license to drive is of no constitutional significance, since it in no manner impairs his freedom to move from state to state; it is merely an incidental disadvantage in travel options. 5. <bold>MOTOR VEHICLES</bold> — <italic>Alcoholics — Problem Drinkers — Traffic Offenses —</italic><italic>Statutory Classification — Revocation Aimed At All Drivers.</italic> The provisions of section <cross_reference>42-2-122</cross_reference>(1)(i) and <cross_reference>42-2-203</cross_reference>, C.R.S. 1973, do not create a statutory classification of alcoholics and problem drinkers with respect to traffic offenses; the traffic laws and the revocation procedures are aimed at <italic>all</italic> drivers who operate a motor vehicle while under the influence of alcohol or while their ability is impaired, regardless of their status as alcoholics and problem drinkers.<page_number>Page 195</page_number> 6. <italic>Intoxication — Impaired Ability — Operation — Prohibition —</italic><italic>Revocation — Statutory.</italic> All persons are prohibited from operating a motor vehicle while intoxicated or while their ability is impaired, and all persons are equally subject to revocation of their licenses upon requisite proof that the statutory bases have been satisfied. 7. <italic>Classification — Alcohol-Related Driving Offenses — Reasonably</italic><italic>Related — Governmental Interest — Safety — Public Highway.</italic> To the extent that one might consider as a classification the categorization of alcohol-related driving offenses under the pertinent statutes, nevertheless, such classification is reasonably related to the expressed governmental interest of providing maximum safety for all persons who travel or otherwise use the public highway. 8. <italic>Driver's License — Due Process Hearing — Right to Drive — Highways —</italic><italic>Not Absolute.</italic> While one's interest in maintaining a driver's license is an interest that requires a due process hearing before termination, the right to drive an automobile upon the public highways is not absolute. 9. <italic>Driver — Reasonable Restrictions — Government — Health — Safety —</italic><italic>Welfare.</italic> The legislature has the prerogative to subject a licensed driver to reasonable governmental restrictions in the interest of public health, safety and welfare. 10. <italic>Revocation — Habitual Traffic Offenders — Legislative Policy — Maximum</italic><italic>Safety.</italic> The explicit legislative policy underlying the enactment of the revocation provisions for habitual traffic offenders is to provide maximum safety for all persons who travel or otherwise use the public highways of Colorado and to deny the privilege of operating motor vehicles to persons who by their conduct and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws. 11. <italic>Reformation — Immunize — Prior Convictions — Negative.</italic> Driver's reformation is not a constitutionally significant fact that serves to immunize his prior convictions from the operation of the habitual traffic offender law. 12. <italic>Disregard of Driver Responsibilities — Safety — Loss of Conditional</italic><italic>Right — Due Process.</italic> When one has consistently demonstrated a total disregard for his responsibilities as a driver and for the safety of other drivers and pedestrians, he cannot complain when he loses his conditional right to use the highways of the state; thus, under the circumstances present in instant case, the revocation of appellant's license and the revocation proceedings in connection therewith comported with due process of law under the Fourteenth Amendment to the United States Constitution and Article II, Section 20, of the Colorado Constitution. 13. <italic>Revocation of License — Conviction — Three Times — Driving Under</italic><italic>Influence — Cruel and Unusual — Negative.</italic> Revocation of appellant-driver's license upon proof that he had been convicted three times of driving while under influence of alcohol within seven-year period was not grossly excessive nor was it arbitrarily imposed in a severe or cruel manner; it was not cruel and unusual punishment in violation of federal and state constitution.<page_number>Page 196</page_number>

1. <bold>WATER AND SANITATION DISTRICTS</bold> — <italic>Board of Directors — Fix Rates —</italic><italic>Executive Committee — Statute — "Rubber Stamp" — Negative.</italic> Under section<cross_reference>37-45-118</cross_reference>(1)(g), C.R.S. 1973, the board of directors has statutory authority to fix rates at which water not allotted to lands shall be sold, leased, or otherwise disposed of; thus, where record indicates that executive committee was acting under the direction of the full board when it formulated new rules and regulations, which were then submitted to the board for approval and adoption, it was therefore the board of directors and not the executive committee which "fixed" the new rates; board did not merely act as a "rubber stamp" of the executive committee. 2. <bold>APPEAL AND ERROR</bold> — <italic>Issues — Not Raised in Trial Court — Barred on</italic><italic>Appeal.</italic> Issues which are not raised in the trial court are precluded from being raised on appeal. 3. <bold>WATER AND SANITATION DISTRICTS</bold> — <italic>Conservancy District — Not Public</italic><italic>Utility — Statute — Lack of Jurisdiction.</italic> A water conservancy district is not a public utility within the meaning of section <cross_reference>40-1-103</cross_reference>, C.R.S. 1973, and thus the district's authority to set water rates is not subject to the jurisdiction of the Public Utilities Commission. 4. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Public Utility — Limited to Inhabitants — Not</italic><italic>Subject to PUC.</italic> A municipal corporation which operates as a public utility and limits its services to the inhabitants of the municipality only is not subject to PUC regulations. 5. <bold>WATER AND SANITATION DISTRICTS</bold> — <italic>Water Conservancy Act — Authority —</italic><italic>Fix Water Rates — Statute — PUC — Negative.</italic> Since the Water Conservancy Act specifically grants to the water districts the authority to fix water rates for non-irrigation water, section <cross_reference>37-45-118</cross_reference>(1)(g), C.R.S. 1973, without any reference to the ratemaking procedure of the Public Utilities Commission, it is clear that the legislature did not intend to make the districts' authority to set water rates subject to the jurisdiction of the Commission.<page_number>Page 203</page_number> 6. <italic>Constitution — Statute — Inapplicable — Not Subject to Jurisdiction</italic><italic>of County Commissioners.</italic> Section 8 of article XVI of the Colorado Constitution and the statute implementing it, section <cross_reference>37-85-101</cross_reference> <italic>et seq.</italic>, C.R.S. 1973, have no application to a water conservancy district; as a "political subdivision of the state of Colorado," a water conservancy district is not subject to the jurisdiction of the board of county commissioners when fixing rates for the sale of water.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Misappropriated Funds of Clients — Misled Court —</italic><italic>Serious Violations — Disbarred.</italic> Attorney-respondent — who misappropriated funds entrusted to him by his clients, who, after being personally served, failed to appear in person or by counsel to answer charges against him, and who misled the court, the record establishing not only serious and aggravated disciplinary violations by respondent but also possible criminal conduct — is disbarred, and will not be permitted to apply for reinstatement for a period of ten years.

1. <bold>COURTS</bold> — <italic>Supreme Court — Request for Advisory Opinion — Homicide —</italic><italic>Declination.</italic> Supreme Court declines to give an advisory opinion on its interpretation of section <cross_reference>18-3-102</cross_reference>(1)(d), C.R.S. 1973 (1978 Repl. Vol. 8) (homicide "under circumstances manifesting extreme indifference to the value of human life") as it relates to the evidence presented; the granting of a motion for judgment of acquittal is based upon the facts of each individual case, and this court's opinion would therefore serve little purpose and would have no significant precedential value.<page_number>Page 237</page_number> 2. <bold>HOMICIDE</bold> — <italic>Evidence — Prior Violent Act of Victim — Ferrell Test —</italic><italic>Admissibility — Purpose.</italic> A defendant is entitled to present evidence of a prior violent act of a victim only if (1) the defendant contends that he acted in self-defense and there is competent evidence to support the contention, (2) either the act occurred or defendant became aware of its occurrence within a reasonable time of the homicide, and (3) the defendant knew of the victim's prior violence at the time of the homicide; the purpose of this test is to establish the relevancy of such evidence. 3. <bold>CRIMINAL EVIDENCE</bold> — <italic>Admissibility — Relevancy — Conditioned —</italic><italic>Fulfillment — Condition of Fact — Rules.</italic> F.R.E. <cross_reference>104</cross_reference>(b) and C.R.E. 104(b) allow the trial court to admit evidence, the relevancy of which is conditioned upon the fulfillment of a condition of fact, either upon,<italic>or subject to</italic>, the introduction of evidence to establish that fact. 4. <italic>Offer of Proof — Compliance — Rule — Support a Finding — Fulfillment of</italic><italic>Condition — Admission — Prior Violent Act.</italic> In order to comply with the requirements of C.R.E. 104(b), the defendant must, at a minimum, make an offer of proof that there will be "the introduction of evidence to support a finding of the fulfillment of the condition"; here, defense counsel did make a proper offer of proof that the condition would be met, and the trial court was correct in relying upon defense counsel's offer of proof as a basis for the admission of the prior violent act evidence." 5. <italic>Offer of Proof — Defense Counsel — Supported by Evidence — Court —</italic><italic>Presumption.</italic> A court must act under the presumption that defense counsel, as an officer of the court, has made an offer of proof which will later be supported by the evidence. 6. <bold>HOMICIDE</bold> — <italic>Ferrell Test — May Be Met — Direct or Circumstantial</italic><italic>Evidence.</italic> The <italic>Ferrell</italic> test — pertaining to the admissibility into evidence of certain prior violent acts by the deceased — does not have to be met by evidence introduced solely by the defendant; it may be met through direct or circumstantial evidence presented by either the prosecution or defense and need only establish a basis upon which the jury can infer each of these three elements have been met. 7. <italic>Prior Violent Acts — Ferrell Test — Satisfied — Circumstantial</italic><italic>Evidence — Defendant — Aware — Mistrial — Denial.</italic> With reference to the introduction of prior violent act evidence, the <italic>Ferrell</italic> test was satisfied, as the prosecution conceded at trial that the victim's prior violent acts occurred within a reasonable time prior to the homicide, since there was direct evidence — through defendant's own testimony — that he acted in self-defense, and since there was sufficient circumstantial evidence for the jury to infer that defendant was aware of those prior violent acts at the time of the homicide; trial court properly denied motion for mistrial. 8. <bold>CRIMINAL LAW</bold> — <italic>Exclusion — Rebuttal Testimony — Witnesses — Not</italic><italic>Appropriate Question of Law — Statute.</italic> Whether trial court abused its discretion — in excluding the rebuttal testimony of two prosecution witnesses who were never endorsed by the People as required by discovery rule — was not an appropriate question of law under statute (section<cross_reference>16-12-102</cross_reference>, C.R.S. 1973) which restricts appeals to those matters of great legal importance and subject to repetition.<page_number>Page 238</page_number> 9. <italic>Challenge to Sundry Rulings — Not Appropriate Question of Law —</italic><italic>Statute.</italic> Challenge to a hodgepodge of various and sundry rulings by the trial court, which allegedly impeded the prosecution's ability to prove its case, was not an appropriate question of law under the statute (section<cross_reference>16-12-102</cross_reference>, C.R.S. 1973) which restricts appeals to those matters of great legal importance and subject to repetition.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Failure to Perform Services — Lack of Concern —</italic><italic>Failure to Respond to Charges — Suspended.</italic> Attorney — who undertook to perform routine legal services for an elderly and indigent widow and was grossly and inexcusably derelict in the performance of his duty thereby compelling client to seek assistance from Colorado Rural Legal Services; who undertook to handle a marriage dissolution and custody matter and then demonstrated a general inattention and lack of concern for his client's welfare; and who failed to respond to charges against him or file any kind of pleading, also failing to appear at the grievance committee hearing after actual notice thereof — is guilty of violating Code of Professional Responsibility and is accordingly suspended from the practice of law; he shall not be permitted to apply for reinstatement for a period of at least one year.

1. <bold>TRIAL</bold> — <italic>First Verdict — Proper — Second Verdict — Ordering Mistrial —</italic><italic>Abuse of Discretion.</italic> Where record indicates that court followed proper procedure for declaring and recording a jury verdict, and, in addition, the judge polled each juror individually and discharged them, and where the judge's clerk later found a second verdict signed by the foreman which verdict had not been mentioned by the foreman when the jury returned and which trial court did not notice, <italic>held</italic>, since first verdict for petitioner in open court was the verdict of the jury, the trial court's order for a mistrial was an abuse of discretion even though it found that the two verdicts were inconsistent. 2. <italic>Verdict — Given Effect.</italic> A verdict shall be given effect if possible. 3. <italic>Thought Processes — Intent — Clear — Verdict — Given Effect.</italic> Court may not look beyond the face of the record to examine the thought processes of the jurors; if the intent is clear from the record, the verdict may be given effect.<page_number>Page 255</page_number> 4. <italic>Verdict — Open Court — Assent of Jurors.</italic> Where trial court read the verdict for petitioner in open court, and all the jurors assented to it; each juror was questioned, reinforcing the evidence of the jury's intentions, <italic>held</italic>, under these circumstances, the verdict for the petitioner in open court was the verdict of the jury. 5. <italic>Verdict — Irregularity — Disregarded.</italic> Any irregularity of form in a verdict should be disregarded if it fairly appears that the jury intended a given verdict.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Motion for Judgment of Acquittal — Ten Days —</italic><italic>Time Fixed by Court — Rule.</italic> Pursuant to Crim. P. 29(c), the court may consider a motion for judgment of acquittal within ten days after the jury is discharged or within such further time as fixed by the court during the ten-day period. 2. <italic>Judgment of Acquittal — Sua Sponte — After Date "Fixed" — Void.</italic> A court cannot <italic>sua sponte</italic> order a judgment of acquittal after the date it had "fixed" pursuant to Crim. P. 29(c); any extension of time after that fixed period is a nullity for purposes of entertaining a motion for judgment of acquittal; accordingly, since the court was without jurisdiction to enter a judgment of acquittal, the judgment is void.

1. <bold>CRIMINAL LAW</bold> — <italic>Sentence — Rehabilitation — Factor — Considered With</italic><italic>Others.</italic> While it is true that rehabilitation is an important factor in determining the sentence to be imposed, it must be considered along with deterrence, punishment, and protection of society. 2. <italic>Sentence — Modification — Failure of Court — Consideration —</italic><italic>Defendant — Society.</italic> Supreme Court should not modify a sentence unless it appears that the trial court has failed to give appropriate consideration to both the needs of the defendant and those of society. 3. <italic>Sentence — Appellate Review — Record — Consideration — Factors —</italic><italic>Statute.</italic> In order for supreme court to properly perform its function of appellate review of a sentence, a careful perusal of the record is required, along with consideration of the statutory factors set out in section <cross_reference>18-1-409</cross_reference>, C.R.S. 1973 (1978 Repl. Vol. 8).<page_number>Page 280</page_number> 4. <bold>ROBBERY</bold> — <italic>Sentencing — Emphasis — Protection of Society — Conviction —</italic><italic>Five Felonies.</italic> Where record at time of sentencing reflected that defendant had previously been convicted of or had pled guilty to five felonies, <italic>held</italic>, this, as such, supported trial court's conclusion that it should place primary emphasis on protection of society rather than rehabilitation of defendant, who pled guilty to two counts of aggravated robbery and one count of first-degree assault and admitted that he had used a deadly weapon during the commission of the robbery. 5. <bold>CRIMINAL LAW</bold> — <italic>Re-Sentencing — Presumptive Sentencing Provisions — Lack</italic><italic>of Merit — People v. McKenna.</italic> Defendant's argument — that he is entitled to be re-sentenced under the presumptive sentencing provisions of the 1977 version of House Bill 1589 — is without merit; the identical argument for re-sentencing made in instant case has heretofore been resolved adversely to the defendant in <italic>People v. McKenna</italic>, <cross_reference>199 Colo. 452</cross_reference>, <cross_reference>611 P.2d 574</cross_reference> (1980).

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Reduction of Sentence — Rule — Exception.</italic> Under Crim. P. 35(a), the trial court may not reduce a sentence reviewed by an appellate court pursuant to C.A.R. 4(c) except as ordered by the reviewing court. 2. <italic>Sentence — Propriety — During Pendency of Appeal — Court — Without</italic><italic>Jurisdiction — Motion for Reduction — Statute — Rule.</italic> During the pendency of an appeal of the propriety of a criminal sentence brought pursuant to section <cross_reference>18-1-409</cross_reference>, C.R.S. 1973 (1978 Repl. Vol. 8), and C.A.R. 4(c), the sentencing court is without jurisdiction to hear a motion for reduction of sentence made pursuant to Crim. P. 35(a) (as in effect prior to November 13, 1979); therefore, the trial court's order reducing the aggravated robbery sentence from 35-40 years to 25-40 years was void. 3. <italic>Sentence — Propriety — Rule — Right to Appeal — Reduction Motion —</italic><italic>Negative — Dismissal.</italic> A defendant does not have the right to appeal the denial of a Crim. P. 35(a) sentence reduction motion when the issue before the appellate court is the propriety of the sentence; the appeal must therefore be dismissed. 4. <italic>Sentence — Aggravated Robbery — Not Excessive — Statutory Appeal —</italic><italic>Post-Appeal Motion — Reconsideration — Proper — Amended Rule.</italic> On statutory appeal, 35-40 year sentence for aggravated robbery is held not to be excessive in light of the defendant's prior record, the circumstances of the offense, and his post-incarceration conduct; however, the defendant may file a post-appeal motion in the sentencing court pursuant to Crim. P. 35(b)(2) (1979 Supp.), as amended and effective November 13, 1979, seeking reconsideration of the 35-40 year sentence.<page_number>Page 284</page_number> 5. <italic>Re-Sentencing — Presumptive Sentencing Provisions — Contention — Lack</italic><italic>of Merit — People v. McKenna.</italic> With reference to defendant's contention that he is entitled to be re-sentenced under the presumptive sentencing provisions of the 1977 version of House Bill 1589, <italic>held</italic>, since this issue was decided contrary to defendant's position in <italic>People v. McKenna</italic>,<cross_reference>199 Colo. 452</cross_reference>, <cross_reference>611 P.2d 574</cross_reference> (1980), his contention is without merit.

1. <bold>EXTRADITION AND DETAINERS</bold> — <italic>Right of State — Demand Return — Offender —</italic><italic>Constitution — Uniform Criminal Extradition Act.</italic> The right of a state to demand the return of a convicted offender emanates from the United States Constitution and the Uniform Criminal Extradition Act. 2. <italic>Waiver — Right of State — Not Presumed — Finding — Affirmative</italic><italic>Evidence.</italic> A waiver of a state's right to extradite will not be presumed from a silent record; rather, a finding of waiver requires affirmative evidence of a state's intent to waive jurisdiction over the fugitive. 3. <italic>Transfer of Custody — Another Jurisdiction — Waiver of Jurisdiction —</italic><italic>Negative — Uniform Criminal Extradition Act.</italic> The Uniform Criminal Extradition Act contemplates that the mere transfer of custody to another jurisdiction will not be deemed a presumptive or implied waiver of jurisdiction by the demanding state. 4. <italic>Lack of Eager Pursuit — Lack of Interest — Return of Fugitive —</italic><italic>Waiver.</italic> Even when a state's actions indicate a lack of eager pursuit of a fugitive or an arguable lack of interest in his return, courts have been unwilling to find a waiver from that evidence alone. 5. <italic>Filing of Detainer — Serving Federal Sentence — Jurisdiction — No</italic><italic>Evidence of Waiver — Removal — Negative.</italic> Where Texas, the demanding state, filed a detainer against petitioner while he was still serving his federal sentence in the correctional institution in Colorado, and where record is devoid of any affirmative evidence that Texas intended to waive jurisdiction over petitioner, <italic>held</italic>, in the absence of any affirmative evidence of waiver, petitioner was not entitled to the removal of that detainer upon his release from federal custody.

1. <bold>CRIMINAL LAW</bold> — <italic>Sentence — Rehabilitation — Other Factors — Justice —</italic><italic>Defendant and Society.</italic> While rehabilitation is an important factor for the trial court to consider when imposing sentence, nevertheless, there are other factors to be placed on the scales, and these must be carefully weighed in arriving at a sentence which does justice to both the defendant and society. 2. <italic>Violence — Society — Not Tolerated — Protection — Proper.</italic> A civilized society cannot tolerate violence and may, with reason and compassion, take such steps as are necessary to protect itself against persons who would endanger its citizens and those whose duty it is to protect them. 3. <italic>Sentence — Advised — Acceptance of Plea — Lack of Protest or Objection</italic><italic>— Benefit — Plea Bargain.</italic> Where trial court gave defendant ample notice of its intention to impose a 28-40 year sentence, repeatedly reminded defendant of what the sentence would be when it advised him, at the time of acceptance of his plea of guilty pursuant to Crim. P. 11, and where at no time did defendant or his counsel protest the sentence or raise an objection that the trial court was not properly exercising its discretion in entering sentence, <italic>held</italic>, under these circumstances, defendant cannot now, after benefiting from the plea bargain, claim that he has been unjustly sentenced. 4. <italic>Re-sentencing — Presumptive Sentencing Provisions — Denied — People</italic><italic>v. McKenna.</italic> Defendant's contention — that he is entitled to be re-sentenced under the presumptive sentencing provisions of the 1977 version of House Bill 1589 — is without merit; this issue was decided contrary to defendant's position in <italic>People v. McKenna</italic>, <cross_reference>199 Colo. 452</cross_reference>,<cross_reference>611 P.2d 574</cross_reference> (1980).

1. <bold>JUDGMENT</bold> — <italic>Full Faith and Credit Clause — California Decree — Enforced</italic><italic>in Colorado — Final — Exception.</italic> The full faith and credit clause requires that a California decree be enforced in courts of this state to the extent that it is final and unmodifiable; however, Colorado courts need not give conclusive effect to a foreign decree when that decree is subject to modification by the courts of the rendering state. 2. <bold>DIVORCE</bold> — <italic>Full Faith and Credit Clause — Modifiable Decree — Sister</italic><italic>State — Modification by Colorado Court — California Decree.</italic> When a modifiable decree of a sister state is before a Colorado court, the full faith and credit clause permits the Colorado courts to alter or modify it, just as the rendering state could; thus, since the California divorce decree in instant case expressly provided for modification upon changed circumstances, the Colorado court had as much leeway to modify or alter the California decree as did the California court which rendered it. 3. <italic>Courts — Jurisdiction — Foreign Judgments — Support — Minor Children —</italic><italic>Full Faith and Credit — Statute.</italic> Section <cross_reference>14-11-101</cross_reference>, C.R.S. 1973 (1979 Supp.) gives Colorado courts subject matter jurisdiction over foreign judgments for support of minor children; as such, this statute reflects a legislative attempt to prevent the state of Colorado from becoming a haven for a parent against whom minimal or, as in instant case, no support orders have been entered in the jurisdiction of rendition by granting Colorado courts explicit authority to enter appropriate orders in a manner<page_number>Page 321</page_number> consistent with the full faith and credit clause. 4. <italic>Foreign Decree — Minnear v. Minnear — Modification — Prohibited —</italic><italic>Overruled.</italic> To the extent that <italic>Minnear v. Minnear</italic>, <cross_reference>131 Colo. 319</cross_reference>,<cross_reference>281 P.2d 517</cross_reference> (1955), might be read to prohibit Colorado courts from modifying a foreign decree that is subject to alteration by the courts of the rendering state, it is expressly overruled. 5. <italic>Child Support — Modify or Alter — Foreign Judgment — Full Faith and</italic><italic>Credit — Statute.</italic> The legislature, in re-enacting section <cross_reference>14-11-101</cross_reference>, C.R.S. 1973 (1979 Supp.), did grant Colorado courts power to modify or alter a foreign judgment for child support under the circumstances of instant case, and such legislation does not offend the full faith and credit clause of the United States Constitution. 6. <italic>Decree — Modification — Child Support — Evidence — Sufficient.</italic> In proceeding by ex-wife to modify a California divorce decree to require child support, evidence of changed circumstances was sufficient to sustain modification of decree to require payment by ex-husband of $300 per month as child support. 7. <italic>Rule — Address of Party — Complaint — Omission — Dismissal —</italic><italic>Unwarranted — Correction.</italic> Original failure to comply with C.R.C.P. 11 by omitting the address of petitioner's address in complaint seeking to modify divorce decree does not warrant dismissal of action, since such an omission, being an oversight, may be corrected, as it was in instant case. 8. <bold>COSTS</bold> — <italic>Failure to Require Cost Bond — Statute — No Reversible Error —</italic><italic>Guarantee.</italic> The failure to require a cost bond under section <cross_reference>13-16-101</cross_reference>, C.R.S. 1973, did not constitute reversible error where attorney for petitioner non-resident agreed to guarantee the payment of court costs and no costs were awarded to respondent resident. 9. <bold>DIVORCE</bold> — <italic>Child Support — Additional Discovery — Financial Documents —</italic><italic>Showing of Inability — Denial — Lack of Abuse of Discretion.</italic> In child support proceeding, trial court did not abuse its discretion in denying ex-husband's motion to compel additional discovery of financial documents when extensive financial data had already been furnished, the documents requested were of questionable pertinency to the issues in the case, and where ex-wife made a showing that the information requested was not within her ability to furnish; moreover, for similar reasons, the trial court did not abuse its discretion in entering protective orders against any further discovery of additional financial information, where, at best, much of the information sought was of questionable materiality to the issues involved.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>License to Practice — Assurance to Public — Honest</italic><italic>Performance — Without Undue Delay — Highest Standards.</italic> A license to practice law assures the public that the lawyer who holds the license will perform basic legal tasks honestly and without undue delay, in accordance with the highest standards of professional conduct. 2. <italic>Professional Misconduct — Appropriate Discipline.</italic> The public has a right to expect that one who engages in professional misconduct will be disciplined appropriately. 3. <italic>Failure to Carry Out Matters — Misrepresentation — Mishandling of</italic><italic>Funds — Failure to Cooperate — Suspended.</italic> Attorney — who failed to carry out various matters entrusted to him by his clients; who misrepresented his progress; who mishandled his clients' money and property, and who failed to cooperate with investigators for the Grievance Committee — is suspended<page_number>Page 333</page_number> indefinitely from the practice of law and must wait at least two years before being permitted to demonstrate his eligibility for reinstatement under C.R.C.P. 253.

1. <bold>CRIMINAL LAW</bold> — <italic>Speedy Trial — Statute — Rule — Six Months — Issues</italic><italic>Raised.</italic> Both Crim. P. 48(b) and section <cross_reference>18-1-405</cross_reference>(1), C.R.S. 1973 (1978 Repl. Vol. 8) require that a defendant be brought to trial "on the issues raised by the complaint" within six months after a plea of not guilty. 2. <italic>Speedy Trial — Violated — Determination — Complaint Amended — Duty of</italic><italic>Court — Rule.</italic> In determining whether the statutory right to speedy trial was violated when a complaint is amended after the defendant has entered a plea of not guilty to the original charge, the court must determine whether the amended complaint charged any new, different, or additional offense which would require another arraignment of the defendant; and the court must then determine if, by not filing the second charge at the time the original charge was filed, the prosecution was attempting to circumvent Crim. P. 48(b), the speedy trial rule. 3. <bold>MOTOR VEHICLES</bold> — <italic>Speedy Trial Rule — Not Circumvented — Driving After</italic><italic>Judgment Prohibited.</italic> Where record reflects that prosecution was not attempting to circumvent speedy trial rule and district attorney was not acting in bad faith nor did he indiscriminately dismiss and refile charges in order to avoid mandate of speedy trial rule, but, rather, once district attorney became aware that defendant had been determined to be a habitual offender district attorney took necessary steps to charge defendant with driving after judgment prohibited, <italic>held</italic>, under these circumstances, defendant was not denied a speedy trial. 4. <bold>CRIMINAL LAW</bold> — <italic>Separate Counts — Single Prosecution — Statute — Rule —</italic><italic>Application.</italic> The statute, section <cross_reference>18-1-408</cross_reference>(2), requiring that offenses be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from same criminal episode applies only where prosecution is aware of other offenses when original action is commenced, and the same is true of criminal rule, Rule 8(a), containing similar provisions. 5. <bold>CONSTITUTIONAL LAW</bold> — <italic>Two Statutes — Disparate Penalties — Similar</italic><italic>Conduct — Equal Protection — Violation.</italic> It is only where two statutes provide disparate penalties for similar criminal conduct that equal protection guarantees are violated. 6. <italic>Symmetry of Punishment — Not Demanded — Valid Classifications —</italic><page_number>Page 366</page_number><italic>Varieties of Evil.</italic> The constitution does not demand symmetry of punishment where valid classifications, based on varieties of evil, exist. 7. <bold>MOTOR VEHICLES</bold> — <italic>Habitual Traffic Offender Statute — Rational — Equal</italic><italic>Protection — Cruel and Unusual — Negative.</italic> The classification under the habitual traffic offender statute, providing for mandatory sentencing of habitual traffic offenders has a rational basis and does not violate the requirement of equal protection of the law; nor is the punishment mandated so disparate to the gravity of the offense as to constitute cruel and unusual punishment. 8. <italic>Driving After Judgment Prohibited — Community Correctional Program —</italic><italic>Sentence — Proper.</italic> An individual sentenced pursuant to section<cross_reference>42-2-206</cross_reference>(1), Driving After Judgment Prohibited, may be sentenced to a community correctional program even though he is not eligible for probation.

1. <bold>MECHANICS' LIENS</bold> — <italic>All Claimants — Parties.</italic> The mechanics' lien law contemplates that all lien claimants be made parties to an action to foreclose. 2. <italic>Motion to Intervene — Time of Filing — Critical Date — Order of</italic><italic>Intervention — Relates Back — Filing — Timely.</italic> The time of the filing of a<page_number>Page 371</page_number> motion to intervene in a mechanic's lien foreclosure action, and not the time the motion is granted, is the critical date for determination of whether the intervention procedure is timely; the order of intervention properly relates back to the date of the filing of the motion to intervene; thus, where motion to intervene was filed within the six-month statutory period for commencing suit to enforce a lien, the filing was timely. 3. <italic>Penalize Lien Holder — Motion Not Granted — Statutory Period — Not</italic><italic>Within Intent of Statute.</italic> To penalize a lien holder who has timely filed a motion to intervene, but whose motion was not granted within the statutory period because of docket congestion or otherwise, is not within the intent of the mechanic's lien statute. 4. <italic>Laws — Construed — Favor of Lien Claimants.</italic> Mechanics' lien laws should be construed in favor of lien claimants.

1. <bold>ARREST</bold> — <italic>Warrantless — Presumption — Unconstitutional — Burden on</italic><italic>People — Rebuttal.</italic> An arrest without a warrant is presumed to be unconstitutional, and the People have the burden of rebutting that presumption by showing both that the arrest was supported by probable cause, and that it fell within a recognized exception to the warrant requirement. 2. <italic>Searches and Seizures — Probable Cause — Constitutional Standards —</italic><italic>Same.</italic> The same constitutional standards for determining probable cause apply whether a search or an arrest is being made by the police; and these standards are applicable whether or not the police have obtained a warrant. 3. <italic>Burglary of Restaurant — Identification By Victim — Officers —</italic><italic>Apartment of Defendant — Probable Cause.</italic> Where arresting officers arrived at scene of burglary a few minutes after offense occurred, obtained physical description from victim of one of the men seen leaving the restaurant, and where victim, although he could not remember name of man he identified, knew that one of his employees was acquainted with that man and might know his name and where he lived, and where officers continued their investigation and upon learning name and address of individual identified by victim went to that address and identified themselves, whereupon defendant opened the door of his apartment and was immediately identified by the victim, <italic>held</italic>, under these circumstances, police had probable cause to make warrantless arrest of defendant. 4. <italic>Warrant — Excused — Standing In Open Doorway — No Expectation of</italic><italic>Privacy — Fourth Amendment.</italic> A warrant requirement is excused, as in instant case, when the defendant is arrested while standing in the open doorway of his apartment, where he is as exposed to public view, speech, hearing, and touch as if he had been standing completely outside his apartment, and where he therefore had no expectation of privacy within the scope of the Fourth Amendment. 5. <bold>CRIMINAL LAW</bold> — <italic>Confrontations — One-on-One — Pre-Trial Identification</italic><italic>— Violative of Due Process — Negative.</italic> Although one-on-one confrontations for the purpose of pre-trial identification of criminal suspects are not favored, nevertheless, they are not <italic>per se</italic> violative of due process.<page_number>Page 388</page_number> 6. <bold>ARREST</bold> — <italic>Police Conduct — Identification — Due Process.</italic> Review of totality of circumstances surrounding arrest of defendant in instant case and police conduct which led to his identification by victim of burglary indicates that defendant's due process rights have not been denied. 7. <italic>Confrontations — One-on-One — May Be Justified — Totality of</italic><italic>Circumstances.</italic> Depending on the totality of circumstances, one-on-one confrontations may be justified, and any suggestiveness in such confrontations countervailed, by the necessity for swift deployment of police forces, by the possibility of immediate eyewitness exoneration of innocent suspects, and by a slight probability of misidentification of the suspect.

1. <bold>APPEAL AND ERROR</bold> — <italic>Civil — Notice of Appeal — Filed Within Thirty</italic><italic>Days — Parties Present.</italic> In order to take an appeal from the judgment of a trial court in a civil case, a notice of appeal must be filed with the clerk of the trial court within thirty days of the date of the judgment appealed from where, as in instant case, the parties are present at the time the judgment is announced. 2. <italic>Notice of Appeal — Extension of Time — Rule.</italic> With regard to filing a notice of appeal, C.A.R. 4(a) makes certain provisions for extension of time by an order of the trial court upon a showing of excusable neglect. 3. <italic>Notice of Appeal — Failure to File — Time — Deprivation of</italic><italic>Jurisdiction — Denial of Review.</italic> Failure to file a notice of appeal within the prescribed time deprives the appellate court of jurisdiction and precludes a review of the merits. 4. <italic>Notice of Appeal — Motion to Stay Judgment — Approval of Supersedeas</italic><italic>Bond — Adequate.</italic> Motion to stay judgment and for approval of a supersedeas bond contained language which was adequate to serve as a notice of appeal in instant case. 5. <italic>Notice of Appeal — Purpose.</italic> The purpose of the notice of appeal is to put the other party on notice that an appeal will be taken and to identify the action of the trial court from which the appeal is to be taken. 6. <italic>Intention — Non-Misleading — Technical Defect — Notice — Harmless.</italic> If the prevailing party could not be misled as to the intention to appeal or as to the judgment from which the appeal is to be taken, any technical defect in the notice of appeal is harmless. 7. <italic>Notice of Appeal — Substantial Compliance — Rule.</italic> With reference to a notice of appeal, substantial compliance with C.A.R. 3(c) is all that is required. 8. <italic>Lack of Designation — Caption — Document — Notice of Appeal —</italic><italic>Substantial Compliance.</italic> Lack of designation in the caption that the document is a notice of appeal will not defeat substantial compliance.<page_number>Page 399</page_number> 9. <italic>Filing Motion to Stay Judgment — Approval of Supersedeas Bond —</italic><italic>Notice of Appeal — Late Filing — Rules — Adequate.</italic> Where defendant substantially complied with C.A.R. 3(c) and 4(a) by filing motion to stay judgment and for approval of supersedeas bond, it was an abuse of discretion for the trial court not to rule that the motion to stay judgment and for approval of a supersedeas bond was adequate to constitute a notice of appeal, or in the alternative to permit late filing of a notice of appeal pursuant to C.A.R. 4(a) in order to clarify the record.

1. <bold>CRIMINAL LAW</bold> — <italic>Sentence — Unfair or Excessive — Determination —</italic><italic>Factors.</italic> In determining whether a sentence is intrinsically unfair or excessive, supreme court must consider its propriety or fairness within the context of the nature of the offense, the character of the offender, and the public interest. 2. <italic>Sentencing — Absence of Prior Felony Conviction — Mitigating Factor —</italic><italic>One Factor Only.</italic> Although the absence of a prior felony conviction or significant criminal involvement, by itself, may constitute a mitigating factor worthy of consideration by the court, it is only one factor and is not conclusive on the sentencing decision. 3. <italic>Sentencing Alternative — Public Interest in Safety — Isolation —</italic><italic>First-Time Offender.</italic> The public interest in safety and deterrence, when considered in isolation, might well justify an alternative to sentencing in the case of a first-time offender, at least in crimes not causing or threatening serious harm to the person or property of others. 4. <italic>Sentencing Decision — Component — Exist in Isolation — Negative —</italic><italic>Factors.</italic> Rarely does a given component bearing on the sentencing decision exist in isolation, or lend itself to a measured calculus; the most that can be expected is that the trial judge consider the various factors of the case and arrive at a synthesis which is reflective of the interests of society and the defendant. 5. <italic>Sentencing — Discretionary — Sentence — Extended Term — Justification</italic><italic>in Record.</italic> In recognition of the discretionary nature of sentencing and its intractability to scientific precision, the supreme court has required that a sentence for an extended term be clearly justified in the record. 6. <italic>Sentence — Twenty-five to Thirty-five — Shooting Three Victims — Not</italic><italic>Excessive.</italic> Where a defendant previously had been convicted of several misdemeanors and was charged with six felony counts as a result of a shooting incident in which he unjustifiably shot three separate victims at close range, <italic>held</italic>, under the totality of circumstances, a sentence of twenty-five to thirty-five years upon conviction of criminal attempt to commit murder in the first degree is not excessive, despite the defendant's lack of any prior felony convictions.<page_number>Page 403</page_number> 7. <italic>Re-Sentencing — Presumptive Sentencing Provisions — Denial — People</italic><italic>v. McKenna.</italic> Defendant's claim — that he is entitled to re-sentencing under the presumptive sentencing provisions of either the 1977 version of House Bill 1589, Colo. Sess. Laws 1977, ch. 216, 18-1-105 at 867, or the 1979 version of House Bill 1589 at 669 — is without merit; the identical argument for re-sentencing made in instant case has heretofore been resolved adversely to the defendant in <italic>People v. McKenna</italic>, <cross_reference>199 Colo. 452</cross_reference>,<cross_reference>611 P.2d 574</cross_reference> (1980) and has been consistently adhered to in later decisions.

1. <bold>CRIMINAL LAW</bold> — <italic>Re-Sentencing — Presumptive Sentencing Provisions —</italic><italic>Denial — People v. McKenna.</italic> Defendant's argument — that he is entitled to re-sentencing under the presumptive sentencing provisions of either the 1977 version of House Bill 1589, Colo. Sess. Laws 1977, ch. 216, 18-1-105 at 867 or the 1979 version of House Bill 1589, Colo. Sess. Laws 1979, ch. 157, 18-1-105 at 669 — is without merit; the identical argument for re-sentencing made here has heretofore been resolved adversely to the defendant in <italic>People v. McKenna</italic>, <cross_reference>199 Colo. 452</cross_reference>, <cross_reference>611 P.2d 57</cross_reference> (1980), and has been consistently adhered to in later decisions. 2. <bold>JUDGES</bold> — <italic>Sentencing — Consider — Public Interest — Safety and</italic><italic>Deterrence — Crimes of Violence.</italic> A sentencing judge properly may consider the public interest in safety and deterrence in sentencing an offender, especially in crimes of serious personal violence. 3. <italic>Protection of Public — Offender — Threatens Security of Another.</italic> Judicial focus on the protection of the public interest is appropriate in the case of an offender who threatens the security of another with a weapon and whose record is such that he is not eligible for probation. 4. <bold>CRIMINAL LAW</bold> — <italic>Sentence — Consecutive — Fifteen to Thirty — Ten to</italic><italic>Twenty — Aggravated Robbery — Not Excessive.</italic> Where a defendant had been previously convicted of three robberies, and had just been convicted of aggravated robbery in another county and sentenced to a term of fifteen to thirty years, a consecutive sentence of ten to twenty years upon conviction of aggravated robbery is not excessive under the circumstances of instant case.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Preliminary Hearing — Compliance — Rule — County</italic><italic>Court — Relitigation — Filing of Information — District Court —</italic><italic>Prohibited.</italic> Where a judicial determination had been made that the defendant substantially complied with Crim. P. 5(a)(4)(I) and therefore was entitled to a preliminary hearing in a criminal action pending in the county court, the People could not relitigate the same question by filing an information in the district court based upon the same charges.

1. <bold>JURY</bold> — <italic>Trial — United States Constitution — Right — Exception.</italic> Under the Constitution of the United States, a criminal defendant has a right to a trial by jury except in petty offense cases (maximum punishment less than six months). 2. <italic>Trial — Colorado — Includes Petty Offenses.</italic> The right of a trial by jury has been expanded in Colorado to include petty offenses. 3. <italic>Absolute Right — Waiver — Negative.</italic> There is no absolute constitutional right of a criminal defendant to waive his right to trial by jury. 4. <italic>Prosecutor — No Absolute Right — Demand or Waive.</italic> A prosecutor has no absolute constitutional right to either demand or waive a trial by jury. 5. <italic>Right — Substantive — Right to Waive — Same.</italic> The right to a jury trial is a substantive right granted to all citizens of the State of Colorado; the correlative right to waive a trial by jury must therefore similarly be substantive in nature. 6. <italic>Waiver — Right — Substantive — Statute — Additional Requirements —</italic><italic>Rule — Prohibited.</italic> The right of a criminal defendant to waive his constitutional right to a jury trial is a substantive matter, and the requirements for exercising such a waiver are contained in section<cross_reference>18-1-406</cross_reference>(2), C.R.S. 1973, thus, because the statute controls, no additional requirements may be imposed by Crim. P. 23(a)(5); accordingly, the consent of the prosecuting attorney cannot be imposed by rule as a condition on the defendant's right to waive trial by jury.

1. <bold>STATUTES</bold> — <italic>Bill — Does Not Become Law — Until Signed by Governor —</italic><italic>Signed — After Effective Date.</italic> When a bill repealing a criminal statute is signed into law after the bill's stated effective date, the directive contained in <italic>Colo. Const.</italic> Art. IV, Sec. 11, to the effect that the bill does not "become a law" until it is signed by the Governor, takes precedence over the directive contained in <italic>Colo. Const.</italic> Art. V, Sec. 19, to the effect that a legislative act "shall take effect on the date stated in the Act." 2. <bold>RAPE</bold> — <italic>House Bill 1042 — Law — Signed by Governor — Statute — Not</italic><italic>Repealed — Crime — Committed — Before — Charged Under Statute — Proper.</italic> Since House Bill 1042 did not "become a law" <italic>for any purpose</italic> until it was signed by the Governor at 3:50 p.m. on July 1, 1975, it follows that section <cross_reference>18-3-401</cross_reference>, C.R.S. 1973, was not repealed until 3:50 p.m. on that date; and since the criminal conduct charged in this case occurred before 3:50 p.m., the defendant was properly charged with rape under section<cross_reference>18-3-401</cross_reference>, C.R.S. 1973. 3. <bold>KIDNAPPING</bold> — <italic>First Degree — Reduced to Second Degree — Approved.</italic> Trial court's reduction of crime charged from first-degree to second-degree kidnapping on defendant's motion for judgment of acquittal is approved; it is a determination supported by the evidence that the specific intent<page_number>Page 417</page_number> required for a conviction of first-degree kidnapping had not been shown to have existed either at the onset of the kidnapping episode or at any subsequent time during the kidnapping. 4. <bold>CRIMINAL EVIDENCE</bold> — <italic>Two Color Photographs — Body — Wounds — Admission —</italic><italic>Proper.</italic> Where trial court admitted into evidence two color photographs of the body of the homicide victim which defendant contends were unduly inflammatory and lacked any probative value with respect to the issues presented at trial, <italic>held</italic>, since the photographs were introduced to show the appearance of the victim's body at the scene of the homicide and location of her wounds, trial court did not abuse its discretion when it balanced the potential inflammatory effect of the photographs with their probative value and concluded that the photographs should be admitted into evidence. 5. <bold>CRIMINAL LAW</bold> — <italic>Mistrial — Refusal to Grant — Proper — Juror — Remark —</italic><italic>"Previous Trial".</italic> Trial court properly refused to grant mistrial on basis of remark made by prospective juror during <italic>voir dire</italic> concerning "previous trial," when remark was brief and equivocal and not specific to defendant and when court took immediate measures to prevent elaboration by prospective juror who made the remark. 6. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Aggravated Robbery — Acquittal — No Rational</italic><italic>Basis — Simple Robbery — Refusal.</italic> Because there was no rational basis on which jury could have acted to acquit defendant of aggravated robbery while convicting him of simple robbery, trial court properly refused defendant's tendered instruction on latter offense. 7. <bold>GRAND JURY</bold> — <italic>Foreman — Refusal to Call — Testify — Proper.</italic> In pretrial hearing, trial court properly refused defendant's request to call foreman of grand jury which returned indictment against defendant to testify as to whether each member of grand jury had in fact read and considered written indictment form. 8. <bold>HOMICIDE</bold> — <italic>Verdict Form — General — First-Degree Murder — Proper.</italic> When indictment was phrased conjunctively with respect to alternate forms of crime of first-degree murder, but jury instructions were phrased disjunctively with respect to forms of that crime, trial court did not err in submitting to jury a general verdict form phrased in terms of first-degree murder "as charged in count one of the indictment." 9. <bold>APPEAL AND ERROR</bold> — <italic>Failure to Preserve — Contemporaneous Objections —</italic><italic>Motion for New Trial — Not Considered on Appeal.</italic> Asserted errors not preserved for appellate review through contemporaneous objections in the trial court and through inclusion in defendant's motion for new trial pursuant to Crim. P. 33(a) would not be considered on appeal. 10. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Form — Method of Amendment — No Plain</italic><italic>Error.</italic> Reviewing court finds no plain error in the form of the indictment or in the method through which it was amended.<page_number>Page 418</page_number>

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Res Gestae — Application.</italic> The <italic>res gestae</italic> or excited utterance exception applies to statements relating to a startling act or event made spontaneously and without reflection while the declarant was under the stress of excitement, and offered to prove the truth of the matter asserted. 2. <italic>Sexual Assault — Young Girl's Statement — Admissible — Res Gestae</italic><italic>Exception — Hearsay Rule.</italic> Where a young girl, 2 years and 10 months old, is sexually assaulted by an adult-male, and within one-half hour of the assault the police return the girl to the mother's house and the girl shortly thereafter says to her mother, "Ron hurt my pee-pee, Momma," the young girl's statement is admissible under the <italic>res gestae</italic> exception to hearsay. 3. <italic>Hearsay — Admissible — Testimonial Incapacity — Age of Declarant.</italic> The testimonial incapacity of a declarant due to her age does not render her hearsay assertion inadmissible. 4. <italic>Hearsay Assertion — Not Contemporaneous With Event — Admissible.</italic> The fact that hearsay assertion by young girl was made neither contemporaneously with the event nor immediately thereafter does not preclude its admissibility. 5. <italic>Res Gestae — Critical Significance — Spontaneous.</italic> What is of critical significance to <italic>res gestae</italic> is the spontaneous character of the statement and its natural effusion from a state of excitement; and this state of excitement may well continue to exist after the exciting fact has ended; thus, the declaration may be admissible even though <italic>subsequent</italic> to the occurrence, <italic>provided it is near enough in time to allow the assumption</italic><italic>that the exciting influence continued</italic>.<page_number>Page 449</page_number> 6. <italic>Res Gestae — Temporal Proximity — Very Young Children — Latitude.</italic> With reference to res gestae statements, considerable latitude in temporal proximity is particularly evident in cases involving assertions by very young children after a stressful experience. 7. <italic>Statement of Young Girl — Interval of One-Half Hour — Impediment —</italic><italic>Negative — Admissible.</italic> Testimonial incapacity of young girl, 2 years and 10 months old, due to her age and the temporal interval of approximately one-half hour between the alleged assault and the hearsay declaration: "Ron hurt my pee-pee, Momma," does not constitute an impediment to the admissibility of the statement. 8. <italic>Hearsay Assertion — Admitted — Declarant — Unavailable — Spontaneity —</italic><italic>Confrontation Rights — Not Violated.</italic> Where declarant was unavailable as a witness due to her age and requirement of spontaneity underlying <italic>res gestae</italic> exception provided an adequate proxy for the truth-exacting sanction of an oath, <italic>held</italic>, under these circumstances, admission of the hearsay assertion under the <italic>res gestae</italic> exception did not violate the confrontation rights of the defendant. 9. <bold>WITNESSES</bold> — <italic>Seven-Year Old — Competent — Statute — Sexual Assault on</italic><italic>Child.</italic> In prosecution for sexual assault on a child, trial court did not error in determining that victim's seven-year old brother was competent as a witness under section <cross_reference>13-90-106</cross_reference>, C.R.S. 1973, even though the witness manifested some confusion as to dates.

1. <bold>PROBATION AND PAROLE</bold> — <italic>Challenge — Terms — Proper.</italic> A defendant may challenge the terms of probation on the ground that they are not within the statutory authority of the court. 2. <italic>Terms and Conditions — Statutory.</italic> The terms and conditions of probation are statutory. 3. <italic>Conditions — Discretion of Court.</italic> The conditions to be imposed with probation are those which the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist him to do so. 4. <bold>WORDS AND PHRASES</bold> — <italic>Restitution — Meaning.</italic> Restitution, which is intended to make the victim whole, means that a defendant should not be forced to repay a victim when there has been no indication that the damage or injury sustained by the victim was inflicted by the defendant.<page_number>Page 467</page_number> 5. <bold>PROBATION AND PAROLE</bold> — <italic>Injury — Result — Conduct of Defendant —</italic><italic>Speculation — Insufficient — Statute.</italic> Section <cross_reference>16-11-204</cross_reference>(2)(e) requires that the injury of the victim be sustained as a result of the conduct of the defendant; however, more than speculation is required in order for the defendant to bear responsibility for the injury. 6. <italic>Responsibility of Defendant — Stolen Credit Card — Speculation —</italic><italic>Restitution — Not Proper Condition.</italic> It was improper for the trial court to order restitution as a condition of probation when it was speculation to believe that the defendant was responsible for the injury for which restitution was ordered; without more evidence showing the defendant's responsibility for damage suffered by retail clothing store as a result of the merchandise purchased with stolen credit card, restitution for the uncharged theft was not a proper condition of probation.

1. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Advise of Charge — Sufficient — Defend.</italic> An information is sufficient if it advises the defendant of the charge he is facing so that he can adequately defend himself and be protected from further prosecution for the same offense. 2. <italic>Statute — Rule — Offense — Set Forth With Certainty — Conviction.</italic> Section <cross_reference>16-5-202</cross_reference>(1)(d), C.R.S. 1973 and Crim. P. 7(b)(2) both require that<page_number>Page 482</page_number> an information set forth the offense charged with such degree of certainty that the court may pronounce judgment on conviction. 3. <italic>Driving After Judgment Prohibited — Distinct Offense.</italic> The crime of Driving After Judgment Prohibited, section <cross_reference>42-2-206</cross_reference>, C.R.S. 1973, is a distinct offense. 4. <bold>MOTOR VEHICLES</bold> — <italic>Driving After Judgment Prohibited — Failure to</italic><italic>Allege — Failure to Advise Defendant — Count Two — Lack of Jurisdiction.</italic> A proper charge of a violation of section <cross_reference>42-2-206</cross_reference>, C.R.S. 1973 — Driving After Judgment Prohibited — must include not only an allegation that the license of an accused driver had been revoked upon a determination that he was an habitual traffic offender, but also an allegation that the accused was operating a motor vehicle on the highways of Colorado while that revocation was still in effect; since the omission of the latter allegation resulted in a failure to advise the defendant of the essential elements of the offense, the allegations in count two do not charge a crime; accordingly, the trial court did not have jurisdiction over the offense charged in count two. 5. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Each Count — Judged Independently.</italic> Each count of an information must be judged independently. 6. <italic>Each Count — Independent of Others — Distinct and Different.</italic> Absent a clear and specific incorporation by reference, each count of an information to be valid must be independent of the others, and in itself charge the defendant with a distinct and different offense. 7. <italic>Failure to Charge — Failure of Jurisdiction.</italic> When an information fails to charge a crime, the court acquires no jurisdiction.

1. <bold>PHYSICIANS AND SURGEONS</bold> — <italic>Negligence and Battery — Six Year Statute</italic><italic>of Limitations — Action — Barred.</italic> In action by patient against doctor alleging negligence and battery, where the statute of limitations, in effect at the time this tort action arose, provided that no such action could be instituted "more than six years after the act or omission which gave rise thereto," section <cross_reference>13-80-105</cross_reference>, C.R.S. 1973, the trial court properly granted the defendant's motion for summary judgment when the plaintiff brought suit more than eleven years after the "act or omission" upon which her suit was founded. 2. <bold>LIMITATION OF ACTIONS</bold> — <italic>Negligence — Fraudulent Concealment — Six-Year</italic><italic>Limitation — Estoppel — Negative.</italic> Mere allegations contained within the plaintiff's complaint that doctor-defendant fraudulently concealed his alleged negligence are insufficient, as a response to his motion for<page_number>Page 515</page_number> summary judgment, to create a genuine issue of fact for trial; thus the defendant was not equitably estopped from raising the six year period of limitations as a bar. 3. <italic>Statute — Retroactive — Due Process — Limited — Denial of Justice.</italic> Generally, a statute of limitations, including a statute which is to be applied retroactively, does not violate due process unless the time fixed by the statute is manifestly so limited as to amount to a denial of justice. 4. <italic>Time Allowed to Bring Suit — Legislature — Primary Judge — Reasonable.</italic> The legislature is the primary judge of whether the time allowed within which to bring suit is reasonable. 5. <italic>Six-Year Limitations Period — Statute — Legislative Discretion — Due</italic><italic>Process.</italic> Legislative decision implicated in the adoption of the "strict" rule with respect to the new six-year limitations period contained in section <cross_reference>13-80-105</cross_reference>, C.R.S. 1973, is well within the legislative discretion, particularly in view of the fact that one of the primary purposes for the adoption of statutes of limitations is to forestall the prosecution of stale claims; the limitation period involved here is not so unreasonably short as to violate due process. 6. <italic>Six-Year Limitations Period — "Healing Arts" — Equal Protection.</italic> The six-year limitations period adopted by the legislature with respect to those engaged in the "healing arts" does not violate constitutional principles of equal protection and the states constitutional prohibition against special legislation.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Neglect and Delay of Legal Matters — Failure to</italic><italic>Communicate — Suspension — Reimbursement.</italic> Where record showed that attorney's conduct evidenced a pattern of neglect and delay of legal matters and a total disregard for the necessity of maintaining communication with his clients in violation of C.R.C.P. 241(B), DR 1-102(A) and DR 6-101(A)(3), <italic>held</italic>, under these circumstances, attorney is suspended for one year and ordered to reimburse his former clients for the penalties, interest and additional attorneys' fees they incurred as a result of his conduct. 2. <italic>License to Practice — Perform Tasks — Honestly and Without Undue</italic><italic>Delay — Discipline.</italic> A license to practice law assures the public that the lawyer who holds the license will perform tasks honestly and without undue delay, in accordance with the highest standards of professional conduct; the public has the right to expect that one who engages in professional misconduct will be disciplined appropriately.

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Settlement Without Client's Consent — Failure to</italic><italic>Inform — Default — Arrest — Disbarred.</italic> Attorney — who entered into a settlement without client's consent, failed to inform client of settlement terms, and allowed a default judgment to be entered against client thereafter resulting in client's arrest — was guilty of neglect of duty, conduct adversely reflecting on his fitness to practice law, and gross neglect, in violation of C.R.C.P. 241B(5); accordingly, attorney is disbarred and will not be permitted to apply for readmission for eight years.