Summary
In People v. Thornton, 187 Colo. 202, 529 P.2d 628, it was held that a defendant who was sentenced to a term with a fixed minimum and fixed maximum for conviction of a class 4 felony, under similar circumstances, was entitled under section 40-1-509 to the benefits of sections 39-11-101(1)(b) and 39-11-304(2). That decision is controlling here and appellant is entitled to be re-sentenced.
Summary of this case from People v. RaceOpinion
No. 26155
Decided December 23, 1974.
Defendant was convicted of second-degree forgery and sentenced to state penitentiary for term of five to nine years from which he appeals pursuant to 1971 Perm. Supp., C.R.S. 1963, 40-1-509.
Remanded With Directions
1. CRIMINAL LAW — Mitigation of Penalties — Amendatory Legislation. A defendant is entitled to the benefits of amendatory legislation which mitigates penalties for crimes when relief is sought before finality has attached to the judgment of conviction.
2. Sentence — Forgery — Benefits — Amendatory Legislation — Relief — Direct Appeal — Proper. Where defendant was given five to nine-year sentence for second-degree forgery, a class four felony, and this transpired less than one month prior to effective date of statutory amendment which provided for imposition of indeterminate sentence for class four and class five felonies, held, under these circumstances, defendant was entitled to benefits of the amendatory legislation, notwithstanding that relief was sought by direct appeal rather than by a postconviction proceeding.
Appeal from the District Court of the City and County of Denver, Honorable Zita L. Weinshienk, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, Gregory L. Williams, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Mary G. Allen, Deputy, for defendant-appellant.
Appellant was convicted of second-degree forgery, a class 4 felony, in violation of 1971 Perm. Supp., C.R.S. 1963, 40-5-103. He was sentenced to the state penitentiary for a term of five to nine years, from which he appeals pursuant to 1971 Perm. Supp., C.R.S. 1963, 40-1-509.
At the time of sentencing, on June 11, 1973, the penalty for a class 4 felony was not less than one nor more than ten years as provided in 1971 Perm. Supp., C.R.S. 1963, 40-1-105.
Colo. Sess. Laws 1973, ch. 145, 39-11-101(1)(b) at 503, and 39-11-304(2) at 504, were enacted effective July 6, 1973, and provide for the imposition of indeterminate sentences for class 4 and class 5 felonies.
[1,2] It is the appellant's contention that the sentence of five to nine years imposed by the court under the circumstances of his case was unduly harsh and excessive, particularly in view of sections 39-11-101(1)(b) and 39-11-304(2), which became effective less than one month after his sentence was imposed.
We need not consider the alleged severity of the sentence in view of our recent decision in People v. Thomas, 185 Colo. 395 525 P.2d 1136. In People v. Thomas we held that a defendant is entitled to the benefits of amendatory legislation which mitigates penalties for crimes, when relief is sought before finality has attached to the judgment of conviction. See People v. Herrera, 183 Colo. 155, 516 P.2d 626.
Although the procedure followed in People v. Thomas, supra, was by way of post-conviction relief under 1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f), there is no valid reason not to grant similar relief under the Thomas rule, where, as here, the application for relief is sought by direct appeal under section 40-1-509.
The People's contention that relief cannot be granted under section 40-1-509 because of alleged constitutional infirmities has been disposed of by our recent decision in People v. Carter, 186 Colo. 391, 527 P.2d 875, wherein we held section 40-1-509 to be constitutional.
We hold that appellant is entitled to the benefits of the indeterminate sentencing provisions of sections 39-11-101(1)(b) and 39-11-304(2).
The cause is remanded with directions to vacate the sentence and to re-sentence appellant.