Summary
In Johnson v. People, Colo., 344 P.2d 181, certiorari denied 361 U.S. 943, 80 S.Ct. 409, 4 L.Ed.2d 364, Colorado held that a defendant convicted between April 15, 1955, and July 1, 1956, in a case in which a sentence other than death was imposed, had until January 1, 1957, within which to prosecute a writ of error.
Summary of this case from Litchfield v. TinsleyOpinion
No. 18,968.
Decided September 14, 1959. Rehearing denied October 5, 1959.
Defendant was convicted of murder in the second degree and seeks review by writ of error.
Writ of Error Dismissed.
1. CRIMINAL LAW — Appeal and Error — Writ of Error — Limitation of Time — Statute. The statute in force prior to April 15, 1955, relating to writs of error in criminal cases, provided that writs of error in cases not capital should issue of course without limitation of time as a writ of right; the amendment of 1955 provided that such writ shall be issued within such time as the Supreme Court shall fix by rule, and by rule it is provided that such writ of error shall not be brought after the expiration of six months from the rendition of the judgment, hence a writ of error issued more than three years after judgment will be dismissed.
2. APPEAL AND ERROR — Criminal Law — Writ of Error — Time to Issue — Rules. A defendant in a criminal case is charged with knowledge that the legislature had placed a qualification or limitation upon the right to issuance of a writ of error, which had theretofore been absolute, and that such right can no longer be considered a writ of right and issue of course but is a matter of procedure and the Supreme Court is authorized to fix the time within which such writ shall issue.
Error to the District Court of Prowers County, Hon. Alfred A. Arraj, Judge.
Mr. HENRY JOHNSON, pro se.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. GERALD HARRISON, Assistant, for defendant in error.
PLAINTIFF in error, to whom we will refer as defendant, by information filed in the district court of Prowers county was charged with the murder of one Irvin Benson. Upon trial the jury returned a verdict of guilty of murder in the second degree. A motion for new trial was filed and overruled and defendant was sentenced to a term of not less than twenty nor more than thirty years in the penitentiary at Canon City.
The offense was alleged to have been committed December 16, 1954; judgment and sentence complained of was entered April 23, 1955; and writ of error was issued by the clerk of this court February 6, 1959.
A rule of this court, of many years standing, in effect on the date judgment was entered (Supreme Court Rule 18) provided: "A writ of error shall not be brought after the expiration of one year from the rendition of the judgment complained of * * *." At no time prior to April 15, 1955, was there any statute specifically authorizing this court to place a limitation upon the right of one to a writ of error in a criminal case. On the date last mentioned, C.R.S. '53, 39-7-27, Cum. Suppl. '57, became effective. This section provides, inter alia: "Writs of error in all criminal cases in which a sentence other than death was imposed shall be considered as writs of right and shall be issued within such times as the supreme court shall fix by rule, * * *." Prior to the adoption of the foregoing, the statute provided that, "Writs of error in all criminal cases not capital shall be considered as writs of rights, and issue of course, * * *." Pursuant to the statute this court adopted a rule effective July 1, 1956, which provides that, "A writ of error in criminal cases shall not be brought after the expiration of six months from the rendition of the judgment and sentence complained of."
In the instant case the attorney general moved to dismiss the writ of error and as grounds for the motion argued that, whether the court applies the one year limitation or the more recently adopted six months rule, plaintiff in error has brought his writ of error too late. It is pointed out by the attorney general that the district court of Colorado are being requested on numerous occasions to furnish bills of exceptions and records without cost to indigent persons who have been convicted of crime; that many of these requests are made years after the judgment; and that some explanation from this court concerning the applicability of the above mentioned rules would be most effective as a guide to the district judges of the state in granting or denying these requests for transcripts. The motion of the attorney general to dismiss the writ of error was denied without prejudice, and we now elect to give it further consideration.
The statute relating to writs of error in criminal cases, which was in force prior to April 15, 1955, was construed in the case of Caviness v. The People, 27 Colo. 283, 60 Pac. 565. In that case it was said that the statute, "* * * gives to a defendant in all criminal cases not capital the absolute right to a writ of error." An "absolute" right created by statutory provision, without limitation upon the time within which it may be exercised, is a matter of substance and this court, by a purported exercise of the rule-making power, was without authority to impose a limitation upon the right created by the legislature.
If the defendant had been convicted and sentenced prior to April 15, 1955, he might well contend that under the law as it existed at the time of the judgment imposed upon him, he was entitled to a writ of error as an absolute right without limitation as to the time of the issuance thereof; however, eight days prior to the time judgment and sentence was pronounced a change in the law was effected. Defendant and his counsel were then charged with knowledge that the legislature had placed a qualification, or limitation, upon the right which had theretofore been absolute. No longer were writs of error to be "considered as writs of right, and issue of course," but on and after April 15, 1955, they "shall be issued within such times as the supreme court shall fix by rule." Thus, this court was authorized as a matter of procedure to fix the time within which a writ of error could issue. Sitler v. Brians, 126 Colo. 370, 251 P.2d 319; Ernst v. Lamb, 73 Colo. 132, 213 Pac. 994. The purpose of the legislation was to remove any question as to the authority of the court thereafter to enact and enforce such a rule. Acting upon this legislative authority this court adopted a rule, effective July 1, 1956, requiring a writ of error to issue within six months from date of judgment.
The writ of error in the instant case did not issue until three years and ten months had passed following the entry of judgment.
The writ of error is dismissed.
MR. JUSTICE FRANTZ specially concurring.
MR. JUSTICE DAY not participating.