People v. Dean, 93CA0709
| Decision Date | 20 October 1994 |
| Docket Number | No. 93CA0709,93CA0709 |
| Citation | 894 P.2d 13 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Norman Edward DEAN, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Matthew S. Holman, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge CRISWELL.
Defendant, Norman Edward Dean, appeals the trial court's order refusing to consider his Crim.P. 35(b) motion for reduction of sentence. We reverse.
Upon his conviction for escape and habitual criminality, defendant was originally sentenced to thirty to thirty-five years' imprisonment. However, this indeterminate sentence was illegal because the underlying offense occurred after July 1, 1979, the effective date of the Determinate Sentencing Act. See Colo.Sess. Laws 1979, ch. 157 at 671.
Defendant filed a Crim.P. 35(a) motion to have this illegal sentence corrected. The trial court granted this motion and issued an amended mittimus to reflect a definite sentence of thirty years.
Within 120 days thereafter, defendant filed a Crim.P. 35(b) motion to have this sentence reconsidered. Because this motion was filed more than 120 days after imposition of the original (illegal) sentence, the trial court concluded that it lacked jurisdiction to entertain this motion. Defendant contends that this was error. We agree.
Crim.P. 35(b) gives a court the power to reduce a defendant's sentence if a motion therefor is made within 120 days after imposition of sentence. Our cases interpreting Crim.P. 35(b) have treated this power expansively. See People v. Fuqua, 764 P.2d 56 (Colo.1988); People v. Cagle, 807 P.2d 1233 (Colo.App.1991).
This power has, however, been limited where separation-of-powers concerns are implicated. Crim.P. 35(b) "adheres to the constitutional principle that only the executive department may modify a legally imposed criminal sentence after the conviction upon which it is based has become final." Mamula v. People, 847 P.2d 1135, 1137 (Colo.1993) (emphasis added).
No such concerns are present here, as the original sentence was not legally imposed. We conclude, therefore, that, if an illegal sentence is imposed, the time for the filing of a Crim.P. 35(b) motion does not start to run. That time...
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Delgado v. People
...does not trigger the rule's 120-day filing deadline, which begins running only after the imposition of a legal sentence. People v. Dean, 894 P.2d 13, 14 (Colo.App.1994), cert. denied (May 8, 1995). In addition, an illegal sentence is not a sentence that was "legally imposed," and therefore,......
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People v. Delgado
...trigger the time for the filing of a Crim. P. 35(b) motion, which begins only on the imposition of a legal sentence. See People v. Dean, 894 P.2d 13, 14 (Colo.App.1994). In this case, however, defendant's motion sought a reduction in the length of his prison sentence, and that portion of th......
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People v. Arnold, 94CA0617
...Crim.P. 35(b) in which the court's power to reduce a sentence has been treated expansively rather than restrictively. See People v. Dean, 894 P.2d 13 (Colo.App. No. 93CA0709, October 20, We are not persuaded by the People's claim that People v. Akins, 662 P.2d 486 (Colo.1983) mandates a dif......