dissenting.
The majority holds that the district court erred by permitting, the district attorney to file a direct criminal information charging the defendant, Karen E. Borg, with criminally negligent homicide. I respectfully dissent.
Initially, the defendant was charged by complaint in county court. After a preliminary hearing, the county court found that the People had not established probable cause to believe that the defendant committed the crime of criminally negligent homicide, and dismissed the complaint. The prosecution then filed a motion in district court seeking permission to file a direct information charging Borg with this same offense. The district court granted the motion ex parte. The defendant moved to dismiss, contending that the district court had abused its discretion in permitting the information to be filed because the prosecution had not stated reasons for the requested refiling, as required by Holmes v. District Court, 668 P.2d 11 (Colo.1983). The district court denied the motion, and the defendant now seeks relief in this original proceeding.
In Holmes, we held that when a county court dismisses a felony complaint after a preliminary hearing the prosecution’s sole remedy is to seek permission of the district court to file a direct information. See Crim.P. 5(a)(4)(V). The same exclusive *784remedy pertains when the complaint charges a class one misdemeanor, such as criminally negligent homicide, rather than a felony. See Crim.P. 5(c)(4).
Crim.P. 7(c) provides that, when an accused person is discharged after a preliminary hearing in county court, the prosecuting attorney may file a direct information “with the consent of the court having trial jurisdiction.” Here, that court is the district court. Crim.P. 5(c)(4). The requirement of consent implies a real application of discretion. Holmes; People v. Swazo, 191 Colo. 425, 558 P.2d 782 (1976). In order to provide a proper basis for exercise of that discretion, “there must be a sufficient evidentiary disclosure by the prosecution to apprise the district court of the earlier dismissal of the identical charges in the county court and the reasons for the requested re-filing.” Holmes, 668 P.2d at 14. One reason supportive of an application to file a direct information is that the county court erred legally or factually in its ruling that no probable cause existed to believe that the defendant committed the crime charged. See Holmes, 668 P.2d at 14.
In the present case, the district attorney filed a written motion in district court alleging that evidence was presented at the preliminary hearing in county court to establish:
(a) That the crime of Criminally Negligent Homicide occurred within the City and County of Denver, State of Colorado on or about the 25th day of August, 1983, at 12:45 P.M.;
(b) That Fatimah Hussin was walking in an unmarked crosswalk with the green light in her favor when she was struck and killed by an automobile;
(c) That the automobile that struck the victim was driven by Karen E. Borg, the defendant herein;
(d) That the automobile driven by Karen E. Borg entered and passed through the intersection against a red light and at a speed of approximately 35 MPH;
(e) That it was a clear, dry, warm day;
(f) That the victim in the crosswalk was struck and carried by the defendant’s automobile and was killed;
(g) That the passenger in the defendant Borg’s automobile gave a statement at the Preliminary Hearing consistent with his attached statement.
The attached five-page, handwritten statement recounts in detail the observations of the passenger in the defendant’s car during the time immediately preceding the fatal accident.1
Implicit in the district attorney’s motion is the contention that the county court erred in ruling that the evidence did not establish probable cause to believe that the defendant committed the crime of criminally negligent homicide. See § 18-3-105, 8 C.R.S. (1983 Supp.).2 In holding that the People did not allege that the county court erred in its finding of no probable cause, the majority does not give proper scope to the obvious import of the People’s motion.
The majority also concludes that the People’s motion did not accurately summarize the testimony before the county court with respect to the reason that the defendant entered the intersection against a red light. The majority opinion attaches importance to that perceived discrepancy in holding that the trial court erred in permitting the *785information to be filed. I cannot agree that the facts asserted in the affidavit supporting the People’s motion were significantly at variance with the preliminary hearing testimony. A comparison of the passenger’s statements supplied to the district court and the testimony of that same witness at the preliminary hearing — both quoted in pertinent part in the majority opinion — reflects no important difference between them. They both state, in summary, that the defendant saw the red light too late to stop before entering the intersection.
The district attorney’s motion, with its supporting statement by the passenger, contains a factual showing sufficient to permit the district court to conclude that probable cause existed, that probable cause had been established in county court, and that the criminally negligent homicide charge had been erroneously dismissed. Under the guidelines in Holmes, the trial judge had the discretion to accept the direct information for filing. I would discharge the rule.
I am authorized to say that ROVIRA, J., joins in this dissent.
. The passenger’s statement relates, among other things:
Karen [Borg] didn’t see the girl. I don’t know why she didn’t see her. She was clearly visible to me. I was looking straight ahead.
. Section 18-3-105, 8 C.R.S. (1983 Supp.) provides:
Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide which is a class 1 misdemeanor. Criminal negligence is defined in section 18-
1-501(3), 8 C.R.S. (1978), as follows:
A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.