O'Day v. People

Full title: O'DAY v. THE PEOPLE

Court: Supreme Court of Colorado. En Banc

Date published: Apr 8, 1946

168 P.2d 270 (Colo. 1946)

168 P.2d 270

Opinion

No. 15,638.

Decided April 8, 1946.

Proceedings in a criminal case involving the correction of an erroneous sentence. In due course a new sentence was imposed by the district court pursuant to instructions from the reviewing tribunal.

Affirmed.

1. CRIMINAL LAW — Erroneous Sentence — Practice and Procedure. In a criminal case, it appearing on review that the sentence pronounced on the convicted defendant was erroneous, the cause was remanded with instructions to the lower court to correct the error. The latter having certified a compliance with the instructions, and it appearing that the new penalty imposed was in accordance with pertinent statutes, the judgment is affirmed.

Error to the District Court of the City and County of Denver, Hon. Joseph E. Cook, Judge.

Mr. MERRITT D. VONDY, for plaintiff in error.

Mr. H. LAWRENCE HINKLEY, Attorney General, Mr. DUKE W. DUNBAR, Deputy, Mr. JAMES S. HENDERSON, Assistant, for the people.

MR. JUSTICE ALTER delivered the opinion of the court.

WE heretofore remanded this case to the trial court with instructions to impose a proper sentence therein and certify its record thereof to this court. O'Day v. People, 114 Colo. 373, 166 P.2d 789. In obedience to our mandate, the court has certified, inter alia, the following:

"Whereupon, it is considered by the Court that the said defendant be by the Manager of Safety and Excise and Ex-officio Sheriff of the City and County of Denver, removed hence to the Common Jail of the City and County of Denver, and from thence by the said Manager of Safety and Excise and Ex-Officio Sheriff conveyed, with all convenient speed, to the State Penitentiary, at Canon City, Colorado, there to be delivered to the warden or keeper thereof, to be by him kept and confined therein, at hard labor, for a period of not less than eighteen (18) years, nor more than thirty (30) years, fully to be completed and ended, to be fed and clothed as the law directs.

"And it is further considered by the Court that this sentence is on the first count only of the information herein, being a sentence under Section 84, Chapter 48, Sub-Section, C.S.A. 1935, proof being lacking on the other two counts of the information."

The penalty now imposed by the judgment of the district court is within the limits prescribed by the legislature upon conviction of a person for the violation of section 84, chapter 48, '35 C.S.A., and the judgment, accordingly, is affirmed.