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People v. Mayfield

Court of Appeals of Colorado, First Division
Sep 9, 1975
540 P.2d 1129 (Colo. App. 1975)

Opinion

         Sept. 9, 1975.

         Editorial Note:

         This case has been marked 'not for publication' by the court.

         John D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellee.


         Rollie R. Rogers, Colorado State Public Defender, Carol L. Gerstl, Deputy State Public Defender, Denver, for defendant-appellant.

         SILVERSTEIN, Chief Judge.

         This is an appeal from an order denying defendant's motion for postconviction review pursuant to s 18--1--410, C.R.S.1973. The motion was denied on the ground that the trial court lacked jurisdiction to grant the relief requested. The Attorney General has confessed error. We agree and reverse.

         Defendant was found guilty of two counts, assault with a deadly weapon against a police officer (1967 Perm.Supp., C.R.S.1963, 40--7--54) and conspiracy to assault a police officer with a deadly weapon, (C.R.S.1963, 40--7--35), which were committed on March 16, 1971. On December 9, 1971, he was sentenced for a term of not less than 13 years nor more than 14 years on the first count, and for a term of not less than 8 years nor more than 9 years on the second count. The terms were to run consecutively. The conviction was appealed, and affirmed by the Colorado Supreme Court on April 8, 1974. People v. Mayfield, Colo., 520 P.2d 748.

         Within 120 days of the issuance of the remittitur by the Supreme Court, defendant filed a motion pursuant to Crim.P. 35(a) and s 18--1--410(1)(f), C.R.S.1973, seeking to have the sentences 'corrected' to run concurrently in conformity with s 18--1--408(3), C.R.S.1973. The trial court concluded that Crim.P. 35(a) had been 'tacitly modified' by People v. Herrera, 183 Colo. 155, 516 P.2d 626. That case held that after a conviction became final, relief from a validly imposed sentence could not be obtained through the judiciary, but only through the Executive Department by way of commutation. It, therefore, denied the motion.

          However, subsequent to the trial court's ruling, the Supreme Court, in People v. Smith, Colo., 536 P.2d 820, held that Crim.P. 35(a) is a valid procedural rule, and that it 'suspends the finality of the conviction . . . for 120 days after final disposition on appeal, to allow the filing of a motion for reduction of sentence in the trial court.' The court further stated:

'The court retains jurisdiction during the 120-day period for filing of a motion for reduction of a sentence. It, therefore, in no way abrogates the doctrine announced in People v. Herrera, supra.'

         Thus it is now apparent that the trial court should have ruled on the merits of the motion.

          Section 18--1--408(2), C.R.S.1973, provides that all offenses upon which the district attorney elects to proceed 'must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode.' This procedure was followed here. The People concede that there was but one victim of both offenses, which arose out of a single criminal episode and that the convictions are supported by the same evidence. Section 18--1--408(3), C.R.S.1973, provides:

'If more than one guilty verdict is returned as to any defendant in a prosecution where multiple counts are tried as required by subsection (2) of this section, the sentences imposed must run concurrently.'

See also Maynes v. People, 169 Colo. 186, 454 P.2d 797.

         Therefore the judgment is reversed and the cause remanded for further proceedings for resentencing the defendant in accordance with s 18--1--408(3), C.R.S.1973.

         SMITH and STERNBERG, JJ., concur.


Summaries of

People v. Mayfield

Court of Appeals of Colorado, First Division
Sep 9, 1975
540 P.2d 1129 (Colo. App. 1975)
Case details for

People v. Mayfield

Case Details

Full title:People v. Mayfield

Court:Court of Appeals of Colorado, First Division

Date published: Sep 9, 1975

Citations

540 P.2d 1129 (Colo. App. 1975)