RAGSDALE v. COUNTY COURT, 39 Colo. App. 341 (1977)

(567 P.2d 817)

Patricia Ragsdale v. The County Court in and for the City and County of Denver, State of Colorado and the Honorable Robert E. Commins, one of the Judges thereof

No. 77-063Colorado Court of Appeals.
Decided May 19, 1977. Rehearing denied June 23, 1977.

Defendant, who was charged with prostitution, refused, during indigency inquiry, to answer questions regarding her income, and county court therefore refused to appoint public defender to represent her. Defendant then sought writ of prohibition in district court, but district court ruled it lacked jurisdiction in the matter. Defendant appealed.

Reversed

1. PROHIBITION — Criminal Defendant — Refuse to Answer — County Court Questions — Fifth Amendment Grounds — District Court — Jurisdiction Present — Consider Petition. Where, at county court hearing on criminal defendant’s application for representation by the public defender, the defendant refused, on Fifth Amendment grounds, to answer certain questions put to her by the court concerning her sources of income, and county court thereupon refused to appoint the public defender to represent her, the district court did properly have jurisdiction to consider the defendant’s petition for a writ of prohibition to compel the appointment of the public defender as her representative in the criminal proceedings, and thus the district court erred in dismissing that petition.

Appeal from the District Court of the City and County of Denver, Honorable Harold D. Reed, Judge.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Richard D. Irvin, Deputy State Public Defender, for petitioner-appellant.

Max P. Zall, City Attorney, Gerald Himelgrin, Assistant City Attorney, for respondents-appellees.

Division II.

Opinion by JUDGE PIERCE.

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Petitioner, Patricia Ragsdale, appeals the order of the district court dismissing her petition under C.R.C.P. 106 for an order compelling the respondents county court and county judge to appoint the public defender to represent her in five criminal proceedings pending in said court in which she is charged with prostitution. We reverse.

In the county court’s hearing on her application for representation by the public defender, petitioner’s affidavit showed that her sole income was $185 per month as a welfare recipient, whereas, her monthly expenses for rent, food, and clothing for herself and her child were considerably in excess of that amount. In response to a question by the court, “You’ve never received any income from any services, whatsoever, from any other source than welfare?” her counsel (the public defender who had not yet been appointed) advised her, in light of the prostitution charges, not to answer and to stand on the Fifth Amendment. The court did not order her to answer the question, but held that the burden was on her to establish her indigency and that, since she refused to answer questions concerning her income, it had no alternative other than to find she was not indigent and to deny the application.

Petitioner then petitioned the district court for a writ of prohibition under C.R.C.P. 106 to compel the respondents to appoint the public defender to represent her. Citing Ryan v. Cronin, 191 Colo. 487, 553 P.2d 754
(1976), the district court dismissed her petition for the stated reason that she had an adequate, plain and speedy remedy at law by appeal from the county to the superior court, and that, therefore, it lacked the jurisdiction to act.

[1] On this appeal, the parties have stipulated that the sole issue is whether, under the circumstances as reflected by the record on appeal, the trial court erred in dismissing the petition for lack of jurisdiction to act. We conclude that the district court’s dismissal of the action was reversible error.

Although there are no Colorado cases precisely on point, a number of cases involving analogous circumstances illustrate the propriety of prohibition in this case. See Shore v. District Court, 127 Colo. 487, 258 P.2d 485 (1953). See also Bustamante v. District Court, 138 Colo. 97, 329 P.2d 1013 (1958); Markiewicz v. Black, 138 Colo. 128, 330 P.2d 539
(1958). This holding is in accord with decisions from other jurisdictions See, e.g., Knight v. Superior Court, 95 Cal. App. 2d 838, 214 P.2d 21
(1950); State ex rel. Rose v. Hoffman, 227 Ind. 256, 85 N.E.2d 486 (1949).

It is argued that, by issuing prohibition, the district court would be substituting an extraordinary writ for the exclusive legal remedy of appeal. See Ryan v. Cronin, supra.

However, the present controversy involves no convictions. Rather, here

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the dispute centers around appellant’s constitutional right to appointed counsel, if she be indigent, and her right to refuse to answer certain questions under the Fifth Amendment. The fact that she could appeal eventual conviction is not determinative. Shore v. District Court, supra. See generally, Comment, Writ of Prohibition as Applied in Colorado, 3 Rocky Mt. L. Rev. 553 (1960).

Appellees further argue that, even if prohibition is an available remedy, the district court would have been in error in finding that the county court abused its discretion in denying indigent status to this appellant. Contending that an act in excess of a tribunal’s jurisdiction is all that “abuse of discretion” entails, they assert that review under C.R.C.P. 106(a)(4) is limited solely to a determination of whether the inferior tribunal exceeded its jurisdiction. This argument is contrary to law. See Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974); C.R.C.P. 106.

The judgment is reversed and the cause remanded to the district court for its further consideration of the writ of prohibition.

JUDGE VAN CISE and JUDGE KELLY concur.

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