Opinion
No. 74-350
Decided October 23, 1975.
Defendant who had been sentenced to serve a term of six to twelve years in the penitentiary moved for reduction of sentence. From the trial court's denial of the motion, defendant appealed.
Order Affirmed
1. CRIMINAL LAW — Sentencing — Appeal — Jurisdiction. Where dismissal of motion for reduction of sentence was appealed on grounds of misapprehension of law rather than propriety of trial court's refusal to reduce sentence, the Court of Appeals did not lack jurisdiction to consider the appeal.
2. Sentencing — Reduction of Sentence — Trial Court — Jurisdiction — Finality — When Occurs. Although sentence originally imposed was a valid one, the trial court retained jurisdiction to modify the sentence until procedural finality occurred, that is, at least until the 120 days granted to the trial court by the rule of procedure to reconsider the previously imposed sentence had passed.
3. Sentencing — Motion for Reduction — Dismissal — Grounds For — Merits. Although trial court dismissed motion for reduction of sentence on grounds that it lacked jurisdiction when it in fact did have jurisdiction, the record shows that the trial court also considered and rejected the motion on its merits; hence, a remand for reconsideration of the motion by the trial court is not warranted.
Appeal from the District Court of the County of Mesa, Honorable William M. Ela, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Solicitor General, Janet Lee Miller, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Lee Belstock, Deputy State Public Defender, for defendant-appellant.
Division III.
Defendant appeals from denial of a motion requesting reduction of sentence under Crim. P. 35(a). We affirm.
Defendant was sentenced to serve 6 to 12 years in the penitentiary after pleading guilty to aggravated robbery. Within the 120-day period following imposition of the sentence, defendant moved for reduction of sentence in the trial court under Crim. P. 35(a). After a hearing, the motion was denied and defendant appeals from the order denying his motion.
[1] At the outset, we reject the People's claim that this court lacks jurisdiction to consider this appeal under C.A.R. 4(c)(1), which states as follows:
"The appellate court may review only a sentence imposed which is more than three years greater than the minimum sentence provided for the offense."
Aggravated robbery is a class 3 felony, § 18-4-302, C.R.S. 1973, and the statutory minimum for a class 3 felony is five years imprisonment. Section 18-1-105(1), C.R.S. 1973. The People argue that since the minimum sentence imposed was six years, we lack jurisdiction to provide the defendant with an independent post-conviction review of the sentence under Crim. P. 35(a) due to the above-quoted portion of the appellate rules.
We are not called upon here, however, to evaluate the propriety of the trial court's refusal to reduce the sentence imposed; rather, we are asked to review the trial court's denial of the motion for reduction of sentence on the grounds that the denial was based on a misapprehension of applicable law. Therefore, the issue of reduction of the sentence is not before us.
[2] Defendant contends that the trial court had jurisdiction to reduce the sentence imposed, pursuant to Crim. P. 35(a), and that therefore he is entitled to a remand because the trial court denied the motion solely on the ground that it lacked such jurisdiction. We agree that the trial court erred to the extent that it concluded it was without jurisdiction to change the sentence.
The People argue that if the original sentence was a valid one, the trial court has no jurisdiction to change that sentence. In our view, however, cases which speak to that proposition such as Smith v. Johns, 187 Colo. 388 532 P.2d 49, and People v. Herrera, 183 Colo. 155, 516 P.2d 626, are not in point here. The rule enunciated in those cases, that the trial court loses jurisdiction to change a validly imposed sentence, applies only after the sentence of the trial court has reached procedural finality.
Finality had not yet occurred here. By Crim. P. 35(a) a trial court retains jurisdiction for 120 days to reconsider the sentence it previously imposed. People v. Smith, 189 Colo. 50, 536 P.2d 820. Therefore, the trial court had jurisdiction in this case to consider the motion even though the sentence originally imposed was entirely legal.
[3] We reject, however, the assertion that the defendant is entitled to a remand requiring the trial court to reconsider the sentence imposed. Our review of the record shows that the trial court did not deny the motion solely on jurisdictional grounds, but rather also considered and rejected the motion on its merits. The defendant was permitted to give testimony in support of the motion, and his counsel was allowed to argue fully all matters relevant to the reconsideration of the sentence. The findings of the court were directed almost entirely to the merits, only parenthetically referring to the jurisdiction question. A remand is not warranted under these circumstances.
Order affirmed.
JUDGE VAN CISE and JUDGE STERNBERG concur.