People v. Ledford, 24698
| Decision Date | 23 November 1970 |
| Docket Number | No. 24698,24698 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Walter Edward LEDFORD, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., Denver, Floyd Marks, Dist. Atty., Stanley B. Bender, Deputy Dist. Atty., Robert J. Braswell, Deputy Dist. Atty., Brighton, for appellant.
No appearance for defendant-appellee.
The defendant-appellee was convicted in the Adams County Court of driving while under the influence of intoxicating liquor. His application for probation was granted. As one of the conditions of probation, he was ordered to serve ninety days in the county jail. On appeal, the district court affirmed the conviction, but remanded the case to the Adams County Court for resentencing on its ruling that the Adams County Court lacked statutory authority to impose a ninety-day sentence as one of the conditions of probation. We granted certiorari to review the issue pertaining to the authority of a sentencing court to impose a period of jail confinement as a condition of probation.
The district attorney on behalf of the plaintiff-appellant argues that the probation and sentence imposed by the county court are proper and that the district court erred in remanding the case to the Adams County Court for resentencing. We do not agree with the district attorney. It is our ruling on this issue that under our probation statute (C.R.S. 1963, 39--16--6), the county court did not have the authority or power to impose a jail sentence as one of the conditions of probation.
By its very nature and definition, probation means and signifies liberty under certain imposed conditions. Its basic purpose is to provide a program which offers an offender the opportunity to rehabilitate himself without confinement. This is to be accomplished under the tutelage of a probation officer and under the continuing power of the court to impose a sentence for his original offense in the event he abuses this opportunity and violates the conditions of probation. See the discussion of probation in Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41; Yates v. United States, 10 Cir., 308 F.2d 737.
When an accused is granted probation, he is also granted his liberty and freedom from confinement in a jail or penitentiary. Unless there is specific statutory authority to the contrary, a trial court may not on the one hand grant probation and on the other hand impose institutional confinement or a jail sentence as a condition of that probation. Trial courts have a wide discretion in imposing certain conditions upon a probationer, but not included within its discretionary power is the authority to impose jail confinement as a condition.
Probation is purely a statutory creation, and, as such, the terms of probation must be derived from the applicable statute. Archer v. Snook, 5 Cir., 10 F.2d 567, 568. C.R.S. 1963, 39--16--6 is entitled 'Probation: Power of court' and provides in part that:
(Emphasis added.)
The wording of this statute is very similar to the language of the original federal probation law which provided in part that:
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