Summary
In People ex rel. VanMeveren v. Dist. Ct., 195 Colo. 65, 572 P.2d 483 (1978), this court held that, even though an individual has twice been convicted of a felony and thus is ineligible for probation, such convictions "do not foreclose a court from sentencing a defendant to a community correctional program...."
Summary of this case from People v. ScottOpinion
No. 27858
Decided February 21, 1978. Opinion modified and as modified rehearing denied February 21, 1978.
Original proceeding in which the People petitioned for a writ of mandamus to challenge the imposition of a deferred sentence. Rule to show cause issued.
Rule Discharged
1. CRIMINAL LAW — Sentence — Community Correctional Program — Proper — Two Prior Felony Convictions. Two prior felony convictions do not foreclose the court from sentencing a defendant to a community correctional program.
2. Community Correctional Program — Sentence — Proper — Discretion — Two Prior Felony Convictions. Notwithstanding the fact that defendant had two prior felony convictions, sentence to a community correctional program for three years was within the district court's discretion.
Original Proceeding
Stuart A. VanMeveren, District Attorney, Loren B. Schall, Assistant, Terence A. Gilmore, Deputy, for petitioner.
The Honorable John A. Price, pro se.
A petition for a writ of mandamus was the only document before us when we issued a rule to show cause. Additional facts, correcting the record in this case, were brought to our attention by a petition for rehearing. We now discharge the rule.
Plea negotiations resulted in the defendant pleading guilty to second-degree burglary of a dwelling — a class three felony. The defendant waived a probation hearing because of two prior felony convictions, and the district court imposed a deferred sentence of two years. The district attorney, as his part of the plea bargain, then dismissed three felony charges which were pending against the defendant. Thereafter, the defendant was charged with two additional crimes, which caused the district attorney to file a motion to revoke the deferred sentence.
Before the motion could be acted upon, the defendant fled to California, was convicted there on an additional felony charge, and was sentenced to a term of from one to five years' imprisonment. The motion to revoke the deferred sentence was thereafter amended to reflect the additional felony conviction in California. After a hearing on the motion, the district court sentenced the defendant to the Larimer County Community Correctional Facility for a period of three years. See section 27-27-101, et seq., C.R.S. 1973 (1976 Supp.).
[1,2] The only issue before us is whether the district court exceeded its jurisdiction by sentencing the defendant to a community correctional program when the defendant had two prior felony convictions. Two prior felony convictions do not foreclose a court from sentencing a defendant to a community correctional program, and the sentence was, therefore, within the court's discretion. See People v. District Court, 195 Colo. 34, 575 P.2d 4. The initial deferred sentence which the court imposed was contrary to our pronouncement in Herrmann v. District Court, 186 Colo. 350, 527 P.2d 1168 (1974). However, the original sentence is no longer material, because of the court's subsequent sentence to the community correctional facility.
Accordingly, we discharge the rule to show cause.