Spann v. People

Decision Date04 April 1977
Docket NumberNo. C--933,C--933
Citation561 P.2d 1268,193 Colo. 53
PartiesGeorge Phillip SPANN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

Rollie R. Rogers, Colorado State, Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Mary G. Allen, Deputy State Public Defender, Denver, for petitioner.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., E. Ronald Beeks, J. Stephen Phillips, Asst. Attys. Gen., Denver, for respondent.

CARRIGAN, Justice.

We granted certiorari to review the decision of the Colorado Court of Appeals, Colo.App., 549 P.2d 427 (1975), which affirmed the trial court's denial of the petitioner's motion under Crim.P. 35(a) for probation or reduction of his sentence. We reverse and remand with instructions.

The petitioner pleaded guilty to violating section 35--43--128, C.R.S.1973, by killing a neighbor's calf, and applied for probation. He was thirty-nine years old, had no prior criminal convictions, had been married sixteen years, and provided the sole support for his wife and their five children. The petitioner had an alcohol problem and had been drinking both beer and whiskey on the day of the offense. His job as a mill hand would have been continued if he were granted probation. The District Attorney did not oppose probation.

In denying probation, the trial judge indicated that because the petitioner's family had been in cattle ranching for several generations, he should have appreciated the significance of killing the calf. A penitentiary sentence of three to five years was imposed.

Petitioner filed a timely motion pursuant to Crim.P. 35(a) seeking probation or reduction of his sentence. At the hearing on that motion, his wife testified regarding the family's hardship, a letter from his penitentiary treatment supervisor strongly recommended release, and another letter offered him a job. The trial judge, in a rambling discourse on many subjects irrelevant to the pending motion, refused to grant probation or reduce the sentence.

Petitioner appealed. In a two-to-one decision, the Court of Appeals characterized the sentence as 'excessive under the circumstances,' but held that the trial court's 'decision is not reviewable because determination of the sentence to be received by an individual defendant is a matter left to the discretion of the trial court, within the bounds provided by the legislature.' The dissenting opinion took the position that, instead of exercising judicial discretion, the trial judge had decided the motion on the basis of irrelevant facts.

Rule 35(a) provides the trial court an opportunity to reconsider, in the interest of justice, a sentence previously imposed. It is the trial court's duty to consider all relevant and material factors, including new evidence as well as facts known at the time the original sentence was pronounced. People v. Smith, Colo., 536 P.2d 820, 822 (1975). The court has an affirmative obligation to exercise judicial discretion in deciding whether to modify the sentence previously imposed and to base the decision on relevant evidence, not personal whim.

The judicial branch, like the executive and legislative, is subject to the doctrine that ours is a government of laws, not of men. 1 Judicial discretion is not personal discretion. All judicial power is held in trust for the people, having been delegated by them through the constitution. Trial judges may exercise judicial discretion only according to law, and a trial judge's exercise of discretion is subject to this court's supervisory authority granted by Colorado Constitution Article VI, section 2(1). Judicial discretion cannot be distorted to camouflage or insulate from appellate review a decision based on the judge's personal caprice, hostility or prejudice.

Other courts have held that a trial judge's discretionary rulings on sentencing and probation are subject to review for abuse of discretion. See e.g., United States v. MacClain, 501 F.2d 1006 (10th Cir. 1974) (setting aside sentences for refusal to submit to induction into the armed forces as abuse of discretion). Alternatively, the general supervisory power of appellate courts to review trial court action has been employed in this context. United States v....

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25 cases
  • People v. Rodriguez
    • United States
    • Colorado Supreme Court
    • 11 d1 Março d1 1996
    ...a defendant's sentence, including new evidence and facts known at the time the original sentence was imposed. Spann v. People, 193 Colo. 53, 55, 561 P.2d 1268, 1269 (1977). A court must then exercise its discretion in deciding whether to modify a previously imposed sentence and, absent an a......
  • People v. District Court of Fifth Judicial Dist. In and For Clear Creek County, 82SA23
    • United States
    • Colorado Supreme Court
    • 21 d1 Junho d1 1982
    ...to communicate. 2 I believe that the failure to consider relevant evidence constitutes an abuse of discretion. See Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977). These are determinations which must be made by the trial court; I do not believe that the court can simply ignore evidence ......
  • People v. Martinez, 07CA0087.
    • United States
    • Colorado Court of Appeals
    • 3 d4 Setembro d4 2009
    ...is subject to this Court's supervisory authority granted by Colorado Constitution, Art. VI, Section 2(1)."); Spann v. People, 193 Colo. 53, 55, 561 P.2d 1268, 1269 (1977) ("[A] trial judge's exercise of discretion [in sentencing] is subject to this court's supervisory authority granted by C......
  • Mamula v. People
    • United States
    • Colorado Supreme Court
    • 8 d1 Março d1 1993
    ...v. People, 199 Colo. 319, 618 P.2d 1101, 1102 (1980) (all relevant and material facts to be considered); Spann v. People, 193 Colo. 53, 56, 561 P.2d 1268, 1269 (1977) (trial court may consider all relevant and material information presented in support of motion to reduce sentence). Neverthe......
  • Request a trial to view additional results
1 books & journal articles
  • Colorado Felony Sentencing
    • United States
    • Colorado Bar Association Colorado Lawyer No. 11-6, June 1982
    • Invalid date
    ...People v. District Court, ___ Colo. ___, 638 P.2d 65 (1981). 52. People v. Smith, 189 Colo. 50, 536 P.2d 820 (1975); Spann v. People, 193 Colo. 53, 561 P.2d 1268 (1977). The diagnostic report prepared pursuant to C.R.S. 1973, §§ 16-11-308(2) and 16-11-309(1) is particularly useful for this ......

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