People v. Martinez

Full title: The People of the State of Colorado v. Augustin Joe Martinez

Court: Supreme Court of Colorado. En Banc

Date published: Feb 19, 1974

524 P.2d 73 (Colo. 1974)

524 P.2d 73

Opinion

No. 25882 No. 25871

Decided February 19, 1974.

From trial court's ruling — that his motion for postconviction relief of sentence reduction pursuant to 1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f) raised only issues of law — denying the motion without an evidentiary hearing, defendant appealed.

Affirmed

1. CRIMINAL LAW — Sentence Reduction — Burglary — Postconviction Motion — Properly Denied. In motion for postconviction relief of sentence reduction alleging that penalty for degree of burglary of which defendant had been convicted had been reduced, trial court correctly ruled that the motion raised only issues of law and properly denied the motion without an evidentiary hearing.

Appeal from the District Court of Mesa County, Honorable William M. Ela, Judge.

John P. Moore, Attorney General, John E. Bush, Deputy, James S. Russell, Assistant, for plaintiff-appellee.

Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Dorian E. Welch, Deputy, for defendant-appellant.

PER CURIAM

[1] Augustin Joe Martinez pleaded guilty on April 5, 1972, to first-degree burglary in violation of 1965 Perm. Supp., C.R.S. 1963, 40-3-5. On April 13, 1972, he was sentenced to a term of not less than seven nor more than ten years in the state penitentiary, with credit to be given for his presentence confinement.

A motion for post-conviction relief of sentence reduction, pursuant to 1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f), was filed on July 10, 1972, alleging as grounds that the penalty for the degree of burglary of which he had been convicted had been reduced, effective July 1, 1972, from five to twenty years to one to ten years confinement in the state penitentiary. The trial court correctly ruled that the motion raised only issues of law and it denied the motion without an evidentiary hearing. We affirm.

These consolidated cases are controlled by People v. Herrera, 183 Colo. 155, 516 P.2d 626, wherein it was held that the provision of the statute under which appellant here seeks relief is unconstitutional.

The judgment is affirmed.