Opinion
John P. Moore, Atty. Gen., James S. Russell, David A. Sorenson, Asst. Attys. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Public Defender, Thomas M. Van Cleave III, Deputy Public Defender, Denver, for defendant-appellant.
SMITH, Judge.
Defendant was charged by a two count information with the offenses of statutory rape and rape. The defendant entered a plea of guilty to the first count charging him with statutory rape which plea was accepted by the court. The People thereupon, pursuant to an agreement they had made with defendant, dismissed the second count alleging rape. The defendant was then granted probation for a period not to exceed five years. The People thereafter, within the five years, sought revocation of the defendant's probation. After hearing, the People's request was granted and the defendant was sentenced by the court to a term of imprisonment in the Colorado State Penitentiary of not less than forty nor more than sixty years. Defendant thereafter filed a motion seeking relief under Crim.P. 35(b). He asserted, Inter alia, that the trial court failed to advise him of the nature and elements of the charge to which he had pled guilty and that, therefore, his plea of guilty was not knowingly and intelligently tendered to the court. The motion for relief under Crim.P. 35 was denied and defendant has brought this appeal.
The Attorney General has appeared in this court and confessed error as to this issue only. We have carefully examined the record from each of the hearings held in this case and can find no indication therein that prior to his entry of a plea of guilty to the statutory rape charge the nature and elements of that offense were ever explained to him either by his counsel or by the court prior to his entry of his plea. The defendant himself at the hearing on the motions specifically denied that the nature of, or the elements of this crime had ever been explained to him, and affirmed that he did not understand the nature of the charge against him when tendering his plea of guilty. We therefore conclude that the trial court erred in denying defendant relief under Crim.P. 35(b). The trial court failed throughout the proceedings to determine if defendant understood the nature and elements of the charge against him pursuant to Crim.P. 11 and therefore, we reverse. People v. Brown, Colo., 529 P.2d 1338; People v. Keenan, Colo., 524 P.2d 604; People v. Sanders, Colo., 524 P.2d 299; People v. Cumby, 178 Colo. 31, 495 P.2d 223; and, People v. Colosacco, 177 Colo. 219, 493 P.2d 650. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
Our disposition relative to defendant's request in his Crim.P. 35(b) motion that his prior plea be set aside obviates the necessity of our determining the other asserted errors allegedly committed by the trial court in the revocation of defendant's probation.
The order of the trial court heretofore entered on June 26, 1974, denying defendant's motion to withdraw his plea of guilty is hereby reversed and the cause is remanded with directions to permit withdrawal of defendant's prior plea of guilty, and to vacate the order dismissing the second count of the information, See People v. Murdock, Colo., 532 P.2d 43 (1975); People v. Colosacco, Supra, and People v. Mason, 176 Colo. 544, 491 P.2d 1383, and for a new arraignment on the original information.
Opinion modified and after modification petition for rehearing denied.
COYTE and RULAND, JJ., concur.