dissenting:
I respectfully dissent. The preliminary hearing required by Crim.P. 5(a)(4) is not a procedural formality that can be dispensed with by the presentation of improbable double and triple hearsay evidence and without the testimony of any perceiving witness. *736Maestas v. District Court, 189 Colo. 443, 541 P.2d 889 (1975); see People ex rel. Leidner v. District Court, 198 Colo. 204, 597 P.2d 1040 (1979). No evidence was presented at the preliminary hearing to prove that the accused committed a sexual assault in violation of section 18-3-405.3, 8B C.R.S. (1994 Supp.). An order binding an accused over for trial that is not supported by probable cause may be reviewed in an original proceeding pursuant to C.A.R. 21. White v. MacFarlane, 713 P.2d 366 (Colo.1986). However, in my opinion, procedural errors at the preliminary hearing in the county court may be reviewed under C.R.C.P. 106(a)(4).
David Abbott (Abbott) was a teacher for twenty-eight years and taught vocational education from 1976 to 1991 in the West Grand School. On May 7, 1991, Abbott was accused of touching the buttocks of a fifteen-year old female student. The incident allegedly occurred in a classroom with at least sixteen people present, including three other teachers. One of the teachers was Abbott’s wife.
On December 11, 1991, Abbott was charged with sexual assault on a child by one in a position of trust. § 18-3^405.3. Abbott requested, and was granted, a preliminary hearing in the county court. The only witness at the preliminary hearing was an investigator for the Grand County District Attorney’s office, Glen Trainor (Trainor). The prosecution presented no direct testimony from any witness to the alleged crime and Trainor’s testimony was entirely hearsay.13 Trainor testified:
[C.H.] related that at a little before five on May 2nd, 1991, she and [T.W.] entered the computer room. [C.H.] said she had to ask Ms. Kuntz, Lisa Kuntz, a question about something, some work she was doing or something like that. She also described the situation as having a lot of people in the room, the teachers were all gathered around the desk trying to do something. [C.H.] said that as she was inside the room, a person she believed to be [R.G.] came down the hall and turned the lights off, turned them back on for a few seconds and then, I guess they went back off. She described the lights being off for a total time period I believe of, I can’t remember, somewhere around five to ten seconds, not an excessive long period of time. [C.H.] related that where she was at in the room when the lights went off, they remained off for this time period and that just prior to the lights coming back on she felt a hand grab her on the lower inside, right hand side of her buttocks, outside of her jeans. She related that this hand grabbed her and that it then went in a caressing motion up to an area that she described as about mid pocket on the back side of her buttocks ....
The county court found that there was probable cause and bound the matter over to the district court for trial. In Maestas, 189 Colo. at 447, 541 P.2d at 892 (1975), we said:
“Where the prosecution exploits the use of hearsay on hearsay and establishes probable cause solely on the basis of secondhand information, the historical function of the preliminary hearing is vitiated' — that being to place before the judge evidence which establishes that probable cause exists to prove that the defendant did commit the crime charged.”
On March 26, 1992, Abbott sought review in the district court pursuant to C.R.C.P. 106, and alleged that the prosecution had failed to put on testimony of a perceiving witness to establish probable cause. Abbott also asserted that the prosecution failed to present any evidence that he subjected the alleged victim to sexual contact in violation of section 18-3-405.3, 8B C.R.S. (1986). Following a hearing, the district court found:
The Court [is] well aware that the use of hearsay has been accepted by the courts for a long time with regards to matters of a preliminary hearing. In this case, as I read the transcript and reviewed your petitions, it appeared that Mr. Trainor had no firsthand knowledge or perception knowledge. Sometimes that works if the individual, such as Mr. Trainor, had interviewed the defendant and the defendant *737had made statements that were sufficient to at least allow an inference that he had involvement here.
As I understand this case, one of the problems is that the victim had testified that the defendant had placed his hand on her buttocks, as I recall under the testimony, and whether that reached the ... elements of the charge. Because I thought that the charge here involved some more private portion of the body. And for that reason, there may be a basic failure of the preliminary [hearing] to show the elements, counsel, so that’s where the Court focused....
... we are not talking about touching the buttocks here, as the Court understands the testimony, which I believe is exactly what the testimony was. The statute is clear’. There has to be a touching of either the anus, the perineum, the genitalia or the breast. And there was no evidence, whatsoever, at the preliminary hearing of any touching of any of those parts or any touching of the clothing covering the immediate area of any of those parts.
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But based upon the testimony elicited at the ... preliminary hearing on February 26, 1992, this Court’s view is that it is exactly what the Supreme Court was talking about when it suggested that at least one perceiving witness be called. And for that reason, the Court is going to grant the petition for review under Rule 106 and will reverse the decision of the County Court and would dismiss the charge here.
At the end of the hearing, the district court invited the prosecution to make a direct filing of an information in the district court so that there could be a proper determination of probable cause. However, the prosecution declined to make a direct filing in the district court and appealed the district court’s decision to the court of appeals.
On July 29, 1993, the court of appeals reversed the district court order and remanded to the district court with directions to reinstate the charge and that decision is affirmed in the majority opinion.
In the unpublished court of appeals opinion in Abbott, the court stated:
Following the filing of briefs and the transcript of the county court preliminary hearing, the district court conducted a hearing and then entered an order reversing the order of the county court and dismissing the charge. That order was based on the district court’s conclusion that there was a “lack of any non-hearsay testimony and failure of the record to clearly reflect elements of charge — ‘sexual contact.’ ”
The county court appeals the district court’s order.
It contends that neither the district court nor this court can properly review a county court’s finding of probable cause. Abbott contends that the district court found in effect that the county court abused its discretion by binding him over for trial when there was not presented at the preliminary hearing relevant non-hearsay evidence or any evidence of the proscribed sexual contact.
Were we to dispose of this appeal based on our review of the transcript of the preliminary hearing, we would agree with Abbott’s contentions and would affirm the order of the district court. The principle stated in Maestas v. District Court, 189 Colo. 443, [447], 541 P.2d 889, [892] (1975) [ (quoting United States v. Umans, 368 F.2d 725 (2d Cir.1966) ]'would be disposi-tive:
“Establishing probable cause on the basis of hearsay alone should only be resorted to when the testimony of a perceiving witness is unavailable or when ‘it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge’ .... Better prosecutorial practice entails the presentation of a residuum of competent, non-hearsay evidence at the preliminary hearing to support probable cause.”
See Hunter v. District Court, 190 Colo. 48, [51], 543 P.2d 1265, [1267] (1975), “While the bulk of testimony at a preliminary hearing may be hearsay, ... the prosecution may not totally rely on hearsay to establish probable cause where competent evidence is readily available.” [Citations omitted.]
*738Other cases follow the same principle. See People v. Horn, 772 P.2d 108 (Colo.1989); Blevins v. Tikonovich, [Tihonovich ], 728 P.2d 732 (Colo.1986); and McDonald v. District Court, 195 Colo. 159, 576 P.2d 169 (1978).
Abbott v. County Court, No. 92CA1202, slip op. at 1-2 (Colo.App. July 29, 1993).
In White, 713 P.2d at 368-69, a habeas corpus proceeding, the defendant contested a county court’s finding of probable cause and we said: “The district court does not have jurisdiction to reopen or reconsider a county court’s probable cause determination.” In a footnote, the court clarified the statement and said: “A district court, however, may review the county court’s pretrial procedural decisions under an abuse of discretion standard” pursuant to C.A.R. 21. Id. at 368 n. 4. Thus, White does not stand for the proposition that a county court’s decisions are not reviewable but that a county court’s factual findings are not reviewable. The district court can review procedural decisions pursuant to C.R.C.P. 106(a)(4). ■
In this case, the court of appeals noted that a review of the record and application of the principle that probable cause cannot be based solely on hearsay should result in a dismissal of the charge against Abbott. However, the court of appeals did not affirm the district court’s dismissal of the charge because it concluded it did not have jurisdiction to review the county court’s finding of probable cause. I disagree. The prosecution failed to present an available perceiving witness. To uphold the order of the county court is to deny an accused his right to a preliminary hearing to determine whether probable cause exists to prove that a crime was committed. The prosecution’s failure to call a perceiving witness, under the facts of this case, was a procedural error that denied Abbott the right to a preliminary hearing on the issue of probable cause.
The court of appeals erred in not reviewing the district court’s decision because Abbott is asserting a procedural error that deprived him of a fair preliminary hearing. Abbott maintains that the issue is whether the county court improperly determined probable cause on the basis of uncorroborated hearsay evidence. Abbott has stated that the county court’s procedural default was the misapplication of the law which “so tempered the rules of evidence ... that [the county court] shifted the burden away from the prosecution and toward the Defendant.” In my view, the district court had jurisdiction to review the procedural issue that Abbott raised.
The fine procedural line drawn by the court of appeals and enforced by the majority in overruling the district court is not supported by the literal wording of C.R.C.P. 106 and C.A.R. 21. C.R.C.P. 106(a) provides in part:
In the following cases relief may be obtained in the district court by appropriate action under the practice prescribed in the Colorado Rules of Civil Procedure:
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(4) Where any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy other provided by law....
C.R.C.P. 106(a)(4) provides a means for review of a county court order in the district court. C.A.R. 21 sets out a procedure for seeking a writ of prohibition, which would have been available if the order to determine probable cause had been an order of the district court entered in excess of its jurisdiction.14
In comparing C.R.C.P. 106(a)(4) with C.A.R. 21, it is noteworthy that C.R.C.P. 106(a)(4) addresses “lower judicial body” and does not specify the district court. The dis-*739triet court is specifically designated in C.A.R. 21. In denying Abbott relief for proceeding under the wrong rule, the majority forces Abbott to refile his meritorious request for appellate review under C.A.R. 21, which is a waste of our limited judicial resources.
Accordingly, I would reverse and remand to the court of appeals with directions to reinstate the judgment of dismissal entered by the district court.
Justice SCOTT joins in this dissent.. There was one non-hearsay statement. Trai-nor said that he interviewed Abbott and that Abbott had admitted being in the room when the alleged incident took place but denied the allegations of a sexual assault.
. C.A.R. 21 provides in pertinent part:
Relief in the nature of prohibition may be sought in the Supreme Court where the district court is proceeding without or in excess of its jurisdiction or where the district court has granted or denied change of venue in actions in rem or in actions where the statute prescribes the forum.
(Emphasis added.)