People v. Lyons, 79CA0011
| Decision Date | 20 March 1980 |
| Docket Number | No. 79CA0011,79CA0011 |
| Citation | 618 P.2d 673,44 Colo.App. 126 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph Carl LYONS, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., David K. Rees, Asst. Atty. Gen., Denver, for plaintiff-appellee.
J. Gregory Walta, Colo. State Public Defender, Terri L. Brake, Deputy State Public Defender, Denver, for defendant-appellant.
On May 19, 1972, the district court sentenced defendant to the penitentiary for an indeterminate term of one day to life under the Sex Offenders Act. Defendant did not appeal that sentence. On September 2, 1976, defendant filed a pro se motion to set aside and vacate the sentence pursuant to Crim.P. 35(b). The district court denied that motion, and the Colorado Supreme Court affirmed that decision on October 23, 1978. On November 15, 1978, defendant filed a motion for reduction of sentence pursuant to Crim.P. 35(a). The district court denied the motion on the basis that it lacked jurisdiction to reduce the defendant's sentence at that time. Defendant appeals that decision. We affirm.
At the time here relevant, Crim.P. 35(a) stated in pertinent part as follows:
"The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a remittitur issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the appellate court denying review, or having the effect of upholding a judgment of conviction." (By amendment effective Nov. 13, 1979, this provision, in substantially similar language, is now Crim.P. 35(b).)
Defendant contends that the appellate decision rejecting his Crim.P. 35(b) motion must be construed as "any order ... having the effect of upholding a judgment of conviction" (emphasis added), and that therefore he was entitled to file his Crim.P. 35(a) motion within 120 days of October 23, 1978.
The overall design of Crim.P. 35 suggests that the procedure described by paragraph (a) relates only to immediate and direct appeals of sentences or convictions rather than to subsequent proceedings in the nature of collateral attack. The first two phrases of the rule's definition of the limiting 120-day period, referring to "the" sentence, "the" judgment or dismissal, and "the" appeal, also support such interpretation. However, the rule's final qualifying phrase, although referring to "the" appellate court, also refers to "any" order and "a" judgment of conviction. These distinctions do introduce an element of ambiguity into the rule.
The purpose of Crim.P. 35(a), insofar as it is here pertinent, is to permit the trial court to re-examine the propriety of a sentence previously imposed. See People v. Malacara, Colo., 606 P.2d 1300 (1980). However, the executive branch of government, not the judiciary, has the sole authority to modify a legally imposed criminal sentence after the conviction upon which...
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...upon which it is based has become final. See People v. Herrera, 183 Colo. 155, 161-62, 516 P.2d 626, 628-29 (1973); People v. Lyons, 44 Colo.App. 126, 618 P.2d 673 (1980). However, as our prior cases make clear, reexamination of the sentence before it becomes final does not intrude into thi......
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...Sentencing Enters a New Era," 13 The Colorado Lawyer 443 (March 1984). 200. People v. Herrera, 516 P.2d 626 (Colo. 1973); People v. Lyons, 618 P.2d 673 (Colo. App. 1980). 201. People v. Simms, 528 P.2d 228 (Colo. 1974). Feature (c) 1995 The Colorado Lawyer and Colorado Bar Association. All ......