Opinion
No. 18,564.
Decided April 21, 1958.
Petition for a writ of habeas corpus by inmate of State Penitentiary. From denial of the writ the petitioner brings error.
Affirmed.
1. CRIMINAL LAW — Sentence — Age — Statute. Under C.R.S. '53, 40-5-1, a person under the age of 21 years convicted of the crime of robbery, it being his first conviction of a felony, may be sentenced to the state reformatory or to the state penitentiary, in the discretion of the court, and if to the penitentiary for a term of not less than one or more than ten years.
2. Robbery — Sentence — Discretion of Court. Where it was within the discretion of the trial court to sentence defendant to the reformatory or to the penitentiary and the sentence was to the penitentiary, and within the minimum and maximum term of years authorized by the statute, the sentence was valid.
Error to the District Court of Pueblo County, Hon. John H. Marsalis, Judge.
Mr. JOHN C. BARTELL, pro se.
No appearance for defendant in error.
JOHN C. BARTELL, an inmate of the penitentiary at Canon City, Colorado, appearing pro se, filed with the district court of Pueblo county what he labeled a Petition for a Writ of Habeas Corpus. The trial court denied the petition and Bartell seeking review brings the case here by writ of error.
From the statements contained in said petition and the photostatic copies of court records appended thereto, it appears that on January 20, 1956, Bartell entered a plea of guilty to a charge of robbery, in the district court of Pueblo county. The court sentenced him to a term of not less that four or more than six years in the state penitentiary. At the time judgment and sentence was pronounced, Bartell was twenty years of age. He asserts that the sentence to the state penitentiary was void and that he should be discharged from custody.
C.R.S. 1953, 39-10-1, provides in pertinent part: "Courts having criminal jurisdiction in Colorado shall sentence to the state reformatory all male persons, and none other, duly convicted before them of felony for the first time, who at the time of sentence shall be of the full age of sixteen years and not more than twenty-one years: * * * provided, that they shall sentence to the state penitentiary at Canon City any male persons between the ages of sixteen and thirty who shall be convicted of crimes involving the penalty of imprisonment for life, or the crime of murder in the first or second degrees or voluntary manslaughter."
Bartell contends that since the maximum punishment provided by statute (C.R.S. '53, 40-5-1) for the offense of robbery is fourteen years, he could not lawfully be sentenced to the penitentiary under the express provisions of C.R.S. '53, 39-10-1 above quoted; however, this statute was adopted by the legislature prior to the 1931 Amendment to the robbery statute which now appears as C.R.S. '53, 40-5-1. The 1931 Amendment states in part that where a person convicted of the crime of robbery, "* * * is a person under the age of twenty-one years at the time of conviction, he may be sentenced to confinement in the state reformatory, or in the state penitentiary, in the discretion of the court; and, if sentenced to the state penitentiary, the duration of the sentence to be imposed shall be within the discretion of the court, the same, however, to be for a term of not less than one nor more than ten years." This amendment adopted by the legislature in 1931, effectively removed the offense of robbery from the coverage of C.R.S. '53, 39-10-1, theretofore controlling.
It was within the discretion of the trial court to sentence Bartell to the reformatory or to the penitentiary. The sentence imposed was within the minimum and maximum term of years authorized by the robbery statute.
No statement contained in Bartell's petition entitles him to relief. The judgment is affirmed.