Summary
In People v. Johnson, 185 Colo. 285, 523 P.2d 1403 (1974), we addressed the issue of whether Johnson was entitled to be sentenced under the amended provisions of C.R.S. 1963, 39-11-306, which required the sentencing judge to take into consideration a defendant's presentence confinement.
Summary of this case from Godbold v. Dist. Ct.Opinion
No. 26045
Decided July 1, 1974.
From denial of his motion for postconviction review of sentence pursuant to 1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f) which purports to give courts the power of commutation of sentences when sentence for crime of which defendant was convicted is subsequently reduced by legislature, defendant appealed.
Affirmed
1. CRIMINAL LAW — Reduction by Legislature — Penalty — Statute — Unconstitutional — Court Without Power. In view of unconstitutionality of statute (1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f)) purporting to give courts power to grant postconviction relief when crime of which defendant was convicted is subsequently reduced by legislature, court could not grant such relief after passage of statute reclassifying simple robbery as class four felony and reducing penalty to not less than one nor more than ten years.
2. Credit — Time Served — Presentence Confinement — Negative. Neither rule nor statute requires that court grant defendant credit for time served prior to sentencing, and there is no constitutional right to credit for presentence confinement.
3. JAILS — Credit — Time Served — Record — Silent — Presumption — Judge — Proper — Imposing Sentence. Where record was silent as to whether sentencing judge stated he was giving credit for time served in jail prior to sentencing, held, under the circumstances, it must be presumed that judge acted properly in imposing sentence upon defendant.
4. CRIMINAL LAW — Reduction of Sentence — Unconstitutional — Infringement — Executive Power of Commutation. To the extent that statute and its amendment authorizes a court to alter or reduce — after a final conviction — — a defendant's sentence to reflect credit for presentence confinement, when such was not constitutionally or statutorily required at time sentence was imposed, such statute was an unconstitutional infringement on the executive power of commutation.
Appeal from the District Court of the City and County of Denver, Honorable Donald N. Pacheco, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, E. Ronald Beeks, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Thomas M. Van Cleave III, Deputy, for defendant-appellant.
William Morris Johnson appeals the denial of his motion for post-conviction review of sentence pursuant to 1971 Perm. Supp., C.R.S. 1973, 40-1-510(1)(f).
Appellant was charged with aggravated robbery under C.R.S. 1963, 40-5-1(2)(b). On January 31, 1967, he entered a plea of guilty to simple robbery and on March 27, 1967, he was sentenced to serve a term in the state penitentiary of not less than seven nor more than fourteen years. No appeal was taken from this judgment of conviction.
[1] On August 1, 1972, appellant filed his motion for post-conviction review of his sentence. The basis for relief was that section 40-4-301 of the Colorado Criminal Code, which became effective July 1, 1972, reclassified simple robbery as a class four felony and under section 40-1-105 reduced the penalty to not less than one nor more than ten years. The trial court denied his motion for post-conviction relief. We affirm.
The case is controlled by People v. Herrera, 183 Colo. 155, 516 P.2d 626, which declared section 40-1-510(1)(f) to be unconstitutional. Appellant's conviction became final on March 27, 1967, when the judgment of conviction was entered. Under Herrera, the trial court was without jurisdiction to grant post-conviction relief from the sentence imposed.
Appellant argues that People v. Herrera, supra, was decided erroneously. This argument was rejected in People v. Rupert, 185 Colo. 288, 523 P.2d 1406, announced contemporaneously herewith, wherein we reaffirmed the holding of Herrera.
[2,3] In his motion for post-conviction relief, appellant also asked for credit for time served in presentence confinement. Neither rule nor statute required that the court grant a defendant credit for time served prior to sentencing, and it is clear that there is no constitutional right to credit for presentence confinement. People v. Nelson, 182 Colo. 1, 510 P.2d 441; People v. Jones, 176 Colo. 61, 489 P.2d 596. The record is silent as to whether the sentencing judge stated he was giving credit for time served in jail prior to sentencing. Under these circumstances, it must be presumed that he acted properly in imposing sentence upon appellant.
[4] Appellant claims, however, that he is entitled to such credit under Colo. Sess. Laws 1972, ch. 44, 39-11-306(1) at 249, which requires the sentencing judge to take into consideration a defendant's presentence confinement. In 1973, the legislature added a provision that "This section shall apply to persons sentenced both before and after July 1, 1972." Colo. Sess. Laws 1973, ch. 147, 39-11-306(4) at 506. To the extent that the statute and its amendment authorizes a court to alter or reduce, after a final conviction, a defendant's sentence to reflect credit for presentence confinement, when such was not constitutionally or statutorily required at the time sentence was imposed, it falls within the principles announced in People v. Herrera, and is an unconstitutional infringement on the executive power of commutation. As heretofore noted, the sentence here imposed was a valid sentence and one not subject to correction as might otherwise have been required had it not complied with the principles set forth in People v. Nelson, supra, and People v. Jones, supra.
The judgment is affirmed.