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Bovard v. People10/18/2004
t as to call for the exercise of the Supreme Court's power of supervision.
The decision to grant writs of certiorari under the rule is entirely within this court's sound discretion, and is reserved for *593 cases in which there are "special and important reasons" supporting certiorari. See C.A.R. 49(a). As such, under both Ross and Evitts, our certiorari review process cannot adequately afford the defendant a right of appeal from the proceeding resulting in his conviction as required by section 16-12- 101. As the Supreme Court explained it, unlike the defendant in Ross who sought discretionary review following affirmance of his conviction on appeal, the defendant who seeks direct appeal for the first time "has not had the benefit of a previously prepared transcript, a brief on the merits of the appeal, or a previous written opinion." See Evitts, 469 U.S. at 402, 105 S.Ct. 830.
In contending that our certiorari review process affords defendants an adequate appeal from district court judgments, neither the People nor the court of appeals suggests that certiorari review provides a full and complete review on the merits. Instead, both understand our decision in Bill Dreiling Motor Co. v. Court of Appeals, 171 Colo. 448, 468 P.2d 37 (1970), as cementing the proposition that direct appeal from the final judgment of the district court is not required because of our statement that "certiorari review by the supreme court constitutes an appellate review." To be sure, in Bill Dreiling we did hold that certiorari review constitutes appellate review under our constitution. Id. at 452, 468 P.2d at 39. In context, however, Bill Dreiling has little application here.
Bill Dreiling arose on the heels of the general assembly's most recent creation of the court of appeals. In that case, we were asked to decide whether an appeal to the court of appeals rather than to this court, following the creation of the court of appeals by the legislature, contravened Article VI, Section 2(2) of the state constitution, which authorized appellate review by the supreme court of every final judgment of the district court. Id. We concluded that certiorari review was indeed appellate review, explaining that filing of a petition for writ of certiorari is an application of right. Id. We added, "the study by this court of that petition and of the record on appeal to determine whether to grant or deny the petition constitutes a review;" and remarked, "as to petitions which are denied, we hold that this review is 'appellate review' as that term is used in the Colorado Constitution." Id. Accordingly, we held that an appeal of right from the district court directly to the Colorado Supreme Court was not required under the constitution. Id. Most importantly, however, our statement in Bill Dreiling does not imply any retreat from the established maxim that the right to direct appeal requires a full review on the merits by an appellate tribunal. Essentially, Bill Dreiling considered only the issue of whether certiorari review following a direct appeal satisfies the constitutional provision requiring appellate review by the supreme court.
None of our post-Bill Dreiling decisions have ever suggested that because certiorari review constitutes appellate review, such a process suffices as the defendant's appeal as of right. In fact, we have expressed the contrary. In Menefee v. City and County of Denver, 190 Colo. 163, 165, 544 P.2d 382, 384 (1976), although we relied on Bill Dreiling for its precept that certiorari constitutes appellate review under the Colorado Constitution, we declared that denial of a petition for certiorari does not constitute a determination of issues on the merits. We reasoned that denials of petitions in criminal cases "mean nothing more than th
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