Opinion
No. 75-293
Decided September 16, 1975.
On nolo contendere plea to charge of fraud by check, court first sentenced defendant to indeterminate period in penitentiary, not to exceed one year, then three days later placed defendant on probation, then sometime later, revoked probation and sentenced her to from 2 to 4 years imprisonment. Defendant appealed denial of her motion to vacate last sentence and reinstate first one.
Affirmed in Part, Reversed in Part.
1. CRIMINAL LAW — Sentencing — Two Sentences — Both Erroneous — Matter Remanded — Resentencing. Initial sentence imposed on criminal defendant was erroneous in that it did not comply with the statutory requirements as to maximum sentence for the crime charged, and subsequent resentencing of defendant, after revocation of probation, was also erroneous because, contrary to statutory requirements, the trial court fixed a minimum term; thus, the original sentence may not be reinstated and the subsequent resentencing of defendant must be set aside and the cause remanded to the trial court with directions to resentence the defendant in accordance with the law.
Appeal from the District Court of the County of Jefferson, Honorable Roscoe Pile, Judge.
J.D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Solicitor General, Janet Lee Miller, Assistant Attorney General, for plaintiff-appellee.
Davies Saint-Veltri, Stuart A. Kritzer, for defendant-appellant.
Defendant pleaded nolo contendere to a charge of violating § 18-5-205(3)(b), C.R.S. 1973, fraud by check, a class 5 felony, which is punishable by a minimum of one year and a maximum of five years' imprisonment. Section 18-1-105, C.R.S. 1973. She was initially sentenced for an indeterminate period, not to exceed one year, at the "Reformatory Section of the Women's Colorado State Penitentiary." Three days later, the trial court placed defendant on probation for a period of four years.
In January 1975, probation was revoked and defendant was sentenced to a term of not less than two nor more than four years at the "State Penitentiary for Women at Canon City." A month later, defendant filed a motion for postconviction relief under Crim. P. 35, alleging the foregoing facts, among others, and asserting that the original sentence was legal, and that the trial court was, therefore, without jurisdiction to alter or amend that sentence. Defendant sought vacation of the 1975 sentence and reinstatement of the original sentence. Her motion was denied, and she appeals. We affirm in part and reverse in part.
The provisions of § 16-11-304(2)(a), C.R.S. 1973, govern both of the sentences imposed by the trial court, and are dispositive of this appeal. The statute provides:
"When a person has been convicted of a class 4 or a class 5 felony, the court shall not fix a minimum time of confinement to be served by the convict, but shall fix a maximum period of time beyond which he shall not be imprisoned, which maximum sentence shall be no more than the maximum penalty provided by law for the offense of which he was convicted, nor no less than one-third of the maximum penalty provided by law for the offense of which he was convicted."
[1] Under this statute, the original sentence imposed by the trial court was erroneous. However, the order granting probation was properly entered, see §§ 16-11-101(1)(a) and 16-11-202, C.R.S. 1973, and, upon revocation of probation, the trial court was authorized to "impose any sentence . . . which might originally have been imposed . . . . " Section 16-11-206(5), C.R.S. 1973.
The sentence thereafter imposed by the trial court, however, fixed a minimum term, contrary to the requirements of § 16-11-304(2)(a). Hence, this sentence was also erroneous.
Since there is no statute which automatically corrects the erroneous sentences of the trial court, see, e.g., §§ 16-11-303, 16-11-305, C.R.S. 1973, we affirm that part of the order of the trial court denying defendant's motion to vacate the subsequent sentence of imprisonment and remand the case to the trial court with directions to vacate that sentence and to resentence the defendant in accordance with law. See People v. Emig, 177 Colo. 174, 493 P.2d 368.
JUDGE ENOCH and JUDGE PIERCE concur.