Opinion
No. 27828
Decided December 12, 1977.
Defendant was convicted of two habitual criminal counts and one count of possession of burglary tools and while serving his sentence he filed a motion to set aside and vacate the judgment pursuant to Crim. P. 35(b)(2), alleging that the habitual criminal statute, section 16-13-101, C.R.S. 1973, was unconstitutional as applied to him. Trial court denied the motion and he appealed.
Affirmed
1. CRIMINAL LAW — Habitual Criminal Statute — Constitutional. The habitual criminal statute is constitutional; and the arguments advanced by the defendant attacking the constitutionality of the habitual criminal statute, section 16-13-101, C.R.S. 1973, were rejected as being without merit in the companion case of People v. Larson, 194 Colo. 338, 572 P.2d 815, announced December 12, 1977.
Appeal from the District Court of El Paso County, Honorable Patrick M. Hinton, Judge.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Nancy E. Rice, Deputy, Paula K. Miller, Deputy, for plaintiff-appellee.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy, Edward G. Donovan, Solicitor General, J. Stephen Phillips, Chief, Appellate Section, for defendant-appellant.
Appellant pled guilty to two habitual criminal counts and to one count of possession of burglary tools and was sentenced to a term of twelve to fourteen years in the Colorado State Penitentiary. As a result of a plea bargain, a guilty plea was entered, and the district attorney dismissed one count of conspiracy to commit first-degree burglary and theft, one count of first-degree burglary of a pharmacy, and one count of felony theft.
While serving his sentence, the appellant filed a motion to set aside and vacate the judgment, pursuant to Crim. P. 35(b)(2), alleging that the habitual criminal statute, section 16-13-101, C.R.S. 1973, was unconstitutional as applied to him. The appellant's motion was denied, and this appeal was perfected.
[1] The arguments advanced by the appellant were rejected in People v. Larson, 194 Colo. 338, 572 P.2d 815. Further discussion is not warranted.
Accordingly, the judgment is affirmed.
MR. JUSTICE CARRIGAN dissents.