An El Paso County judge mistakenly dismissed a criminal charge against a man who was incarcerated out of state, Colorado’s second-highest court determined on Thursday, finding the judge incorrectly believed the defendant was entitled to a probable cause hearing.

Colorado law gives suspects accused of serious felonies the right to a preliminary hearing, at which the prosecution must demonstrate probable cause of a crime. Persons accused of less serious felonies will also receive a hearing if they are “in custody for the offense for which the preliminary hearing is requested.”

But what if a defendant is in custody elsewhere for a different offense and cannot be transferred to Colorado’s custody? The answer, said a three-judge panel for the Court of Appeals, is that the defendant will not receive a probable cause hearing.

Robert Charles Allen III faced a criminal charge of felony menacing in El Paso County, but was incarcerated in a Louisiana prison at the time a warrant issued in Colorado. Allen received a public defender for his Colorado offense and appeared by video in court. Louisiana, as one of two states that has not signed on to an agreement governing interstate detainee transfers, would not bring Allen to Colorado during any of the proceedings.

Allen’s lawyer asked for a probable cause hearing, but District Court Judge William Moller initially believed Allen was not entitled to one, as he was not in custody for his local menacing offense. However, in February 2023, Moller “tentatively” set a hearing for the next month, saying he would reconsider the issue soon.

The prosecution filed an appeal to the state Supreme Court arguing Moller should be blocked from providing a preliminary hearing, but the court declined to hear the case. 

At a rescheduled preliminary hearing, the prosecution continued to object based on Moller not being in custody specifically for his Colorado charge. Moller disagreed, prompting the prosecutor to say he would not be calling any witnesses to testify to probable cause.

Moller called it a “deep disappointment” and a “deliberate and calculated” move by the prosecutor to refuse to participate. Finding no probable case, he dismissed Allen’s charge.

The district attorney’s office appealed the dismissal and the Court of Appeals agreed Allen did not qualify for a preliminary hearing under state law.

“Allen was not being held in connection with the menacing charge,” wrote Judge Katharine E. Lum in the panel’s April 25 opinion. “Rather, the only thing holding him in custody was the unrelated Louisiana prison sentence he was serving. Therefore, he was not ‘in custody’ for the menacing charge.”

Because there was no authority for holding a preliminary hearing in the first place, she added, “it necessarily follows that the court was without authority to dismiss the charges.”

The panel reinstated the menacing charge. Lum added that if Allen is ultimately placed in custody for his El Paso County offense, he may be entitled to a probable cause hearing then.

The case is People v. Allen.