Opinion
July 8, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy State Atty. Gen., Edward G. Donovan, Sol. Gen., J. Stephen Phillips, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.
COYTE, Judge.
Defendant appeals from a sentence entered subsequent to the changing of statutory limits in effect when the crime was committed.
On October 15, 1973, defendant pleaded guilty to a charge of gross sexual imposition, s 18--3--402, C.R.S. 1973, a class IV felony, and was sentenced on November 16, 1973, to serve 8 to 10 years in the Colorado State Penitentiary. Defendant filed his appeal within the statutory period, and, while the appeal was pending, filed a motion for correction of sentence under Crim.P. 35(a) asking for reduction of this sentence. When the motion was denied in April 1974, he pursued the direct appeal of the 8 to 10 year sentence, alleging that the imposition of an 8 year minimum sentence was illegal under s 16--11--304(2) (a), C.R.S. 1973, which became effective on July 6, 1973, and should be reassessed. The People have confessed error and we reverse.
At the time of defendant's commission of gross sexual imposition on May 1, 1973, the crime was punishable by a sentence of one to 10 years. 1971 Perm.Supp., C.R.S. 1963, 40--3--402 and 40--1--105. However, at the time of sentencing, the penalty had been changed to a mandatory indeterminate minimum and a maximum of 10 years, s 16--11--304(2)(a), C.R.S. 1973. As the defendant asked for sentence correction while his appeal was still pending, and the court thereby retained jurisdiction over him, he is entitled to receive a sentence as mitigated by amendatory legislation. People v. Thomas, Colo., 525 P.2d 1136. The district court did not have the benefit of Thomas when it denied defendant's Crim.P. 35(a) motion in April 1974, but the decision is controlling.
Judgment reversed and cause remanded for resentencing.
ENOCH and BERMAN, JJ., concur.