Johnson v. People, 23501
| Decision Date | 15 March 1971 |
| Docket Number | No. 23501,23501 |
| Citation | 482 P.2d 105,174 Colo. 75 |
| Parties | Albert JOHNSON, Plainiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Rollie R. Rogers, Colo. State Public Defender, Truman E. Coles, Asst. State Public Defender, Earl S. Wylder, Deputy State Public Defender, Edward H. Sherman, Public Defender, Edward L. Kirkwood, Asst. Public Defender, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.
Defendant Johnson alleged, in his motion under Crim.P. 35(b), that the trial court had exceeded its jurisdiction when it sentenced him to more than fourteen years on the charge of robbery. The trial court summarily denied the motion on the ground that this matter should have been raised on writ of error and is '* * * not subject to review * * *' under Crim.P. 35(b).
Defendant Johnson, and one Charles Wesley Ray, were convicted in 1959 of 'aggravated robbery' after trial to a jury. They appealed their convictions by writ of error. Defendant Johnson did not assign as error this matter of his sentence (eighty years to life). Both convictions were affirmed by this court in Ray v. People, 147 Colo. 587, 364 P.2d 578.
The trial court was incorrect in its statement that an issue involving the jurisdiction of a trial court to impose a certain sentence is not subject to review under Crim.P. 35(b). Nevertheless, there is ample reason, as shown from the record before us on this writ of error, to sustain the trial court's denial of this motion. We therefore affirm the judgment.
Defendant Johnson on this writ of error contends that the trial court erred in denying his 35(b) motion which requested that the judgment and sentence of eighty years to life be vacated and that he be resentenced to a term of not more than fourteen years. In his 35(b) motion and in his brief here, the defendant maintains that the verdict of the jury finding him guilty of 'aggravated robbery,' must be legally interpreted as a verdict of guilty to simple robbery which is punishable 'for a term of not less than one nor more than fourteen years.' C.R.S. 1963, 40--5--1. This statute also provides that under certain conditions the offense of robbery is punishable 'for a term of not less than two years, or for life.' This statute specifies that the increased punishment shall be imposed if it is proven that in the perpetration of the robbery either the defendant or an accomplice is armed with a dangerous weapon and has the intent, if resisted, to kill, maim or wound another person.
Defendant argues that the word 'aggravated' in front of the word 'robbery' in the jury's verdict is mere surplusage, and therefore, the trial court could not under this verdict...
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