Opinion
No. 77-1010
Decided May 24, 1979. Rehearing denied June 21, 1979. Certiorari granted October 9, 1979.
Defendant appealed from a denial of his motion for correction of mittimus asking that the period of his presentence confinement be credited against his commuted sentence.
Affirmed
1. CRIMINAL LAW — Sentence Commuted — No Authority In Judiciary — Reduce — Alter or Amend. Where the Governor has already commuted a defendant's sentence, neither the appellate court nor the trial court has jurisdiction to reduce, or in any way alter or amend, the sentence as commuted.
Appeal from the District Court of the City and County of Denver, Honorable Robert T. Kingsley, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, William Morris, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, for defendant-appellant.
Defendant filed a motion for correction of mittimus asking that the period of his presentence confinement be credited against his commuted sentence. From the denial of this motion, defendant appeals, and we affirm.
Defendant was sentenced to concurrent terms of 50 to 60 years and 5 to 10 years in the Colorado State Penitentiary for aggravated robbery and conspiracy. In its original judgment and sentence, the trial court ordered that time already served in the county jail be credited to defendant's sentence. However, because no amount of time served was specified in the original judgment and sentence, the penitentiary apparently did not credit the defendant with any time spent in county jail.
On November 19, 1976, the district court issued an amended judgment of conviction and mittimus nunc pro tunc as of April 18, 1966. The judge's letter to the defendant accompanying this amended mittimus stated that the purpose of the amendment was to give the defendant credit for three years, one month, and twenty-eight days preconviction confinement. However, the amended mittimus itself stated that: "The sentence imposed reflects that credit was not given for such [presentence] confinement." The defendant argues that this statement resulted from a clerical error in marking out the wrong portion of the standardized form.
On December 9, 1976, the Governor commuted defendant's sentence to a total of 29 to 40 years.
The leading case regarding judicial power to alter commuted sentences is People ex rel. Dunbar v. District Court, 180 Colo. 107, 502 P.2d 420 (1972). In Dunbar, the defendant was sentenced by the trial court to life imprisonment for first degree murder. Following commutation of his sentence by the Governor, the defendant filed a motion under Crim. P. 35 seeking credit for time served in the county jail prior to his conviction. In original proceedings, the Supreme Court held that the Governor has exclusive power to grant commutation under Colo. Const. Art. IV, § 7, and thus:
"The district court cannot alter or amend the commuted sentence imposed by the executive."
See also People v. Simms, 186 Colo. 447, 528 P.2d 228 (1974).
The defendant contends, however, that Crim. P. 36, stating that clerical mistakes or errors arising from oversight or omission may be corrected by the court at any time, distinguishes this situation from Dunbar, and as support for this position cites People v. Mason, 188 Colo. 410, 535 P.2d 506 (1975). Defendant contends that the ability to correct clerical errors and oversights gives the court continuing jurisdiction similar to that found to exist in McClure v. District Court, 187 Colo. 359, 532 P.2d 340 (1975), wherein a commutation was granted during the pendency of an appeal.
[1] The cases relied on by the defendant are inapposite. In People v. Mason, supra, there was no commutation of the defendant's sentence by the Governor, and accordingly, the holding in that case concerning the authority of the trial court to correct clerical mistakes in judgments under Crim. P. 36 does not affect the scope of Dunbar. Further, the defendant here did not appeal either his conviction or his sentence, and the rule of McClure is therefore inapplicable.
We conclude that the holding in Dunbar is dispositive, and that, since the Governor has already commuted the defendant's sentence, both this Court and the trial court "lack jurisdiction to reduce, or in any way alter or amend the sentence as commuted." People v. Simms, supra.
Judgment affirmed.
JUDGE PIERCE and JUDGE RULAND concur.