People v. Patrick, 75--610

• Decision Date: 08 July 1976
• Docket Number: No. 75--610,75--610
• Citation: 555 P.2d 182,38 Colo.App. 103
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Theodore PATRICK, Jr., Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 182

555 P.2d 182

38 Colo.App. 103

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Theodore PATRICK, Jr., Defendant-Appellant.

No. 75--610.

Colorado Court of Appeals, Div. III.

July 8, 1976.

Rehearing Denied Aug. 5, 1976.

Certiorari Denied Oct. 18, 1976.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John R. Rodman, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Tallmadge, Tallmadge, Wallace & Hahn, David J. Hahn, Harvey P. Wallace, John W. Smith, Denver, for defendant-appellant.

KELLY, Judge.

The defendant, Theodore Patrick, Jr., appeals from a judgment and sentence entered on June 26, 1975, revoking a prior sentence entered on June 27, 1974, the execution of which had been suspended on certain conditions. Although we conclude that the trial court's attempt to suspend execution of the 1974 judgment and sentence was invalid, we affirm the judgment and sentencing portions thereof, and vacate the 1975 judgment.

Patrick was convicted by a jury of false imprisonment. On June 27, 1974, the trial court entered 'Judgment of Conviction Sentence and Mittimus' in which probation was explicitly denied, and Patrick was:

'sentenced to serve 1 years (sic)

AND FINED $1,000.00

ORDER THAT $1,000.00 FINE IS HEREBY SUSPENDED ON TERMS AND CONDITIONS AND UNDER SUPERVISION OF PROBATION DEPARTMENT.

FURTHER ORDER: DEFENDANT IS TO SERVE ONLY 7 DAYS OF DENVER COUNTY JAIL SENTENCE AND REMAINDER OF ONE YEAR SENTENCE IS HEREBY SUSPENDED ON TERMS AND CONDITIONS AND UNDER SUPERVISION OF PROBATION DEPT. ORDER DEFENDANT GRANTED 30 DAYS STAY OF EXECUTION ON 7 DAY JAIL SENTENCE UNTIL 7/29/74 at 8:30 A.M.'

The stay of execution of the '7 day jail sentence' was continued pending Patrick's appeal of his conviction to this court.

On June 26, 1975, prior to our affirmance of Patrick's appeal on the merits of his conviction, the trial court held a hearing pursuant to a petition filed by a probation officer for 'Revocation of Suspended Execution of Sentence,' in which it was alleged that Patrick had been convicted of false imprisonment in California. Patrick was present at this hearing, and was represented by counsel. As a result of this hearing, the trial court entered a second 'Judgment of Conviction Sentence and Mittimus,' again explicitly denying probation, and further stating:

'ORDER SUSPENDED SENTENCE OF JUNE 27, 1974 be REVOKED ORDER EXECUTION OF SENTENCE.'

Patrick was also 'sentenced to serve 1 year, Said Defendant to be Imprisoned at the DENVER COUNTY JAIL.'

In this appeal from the second judgment of the trial court, Patrick contends in his opening brief that he was not adequately notified of the revocation proceedings, that the People had not met their burden of proof, and that his California conviction was improperly considered by the trial court because his appeal thereof had not been concluded. Since both Patrick, in his opening brief, and the People, in the answer brief, treated the hearing in the trial court as a proceeding for revocation of probation under the provisions of § 16--11--206, C.R.S.1973, this court ordered the simultaneous filing of supplemental briefs directed to the question whether the trial court was authorized to deny probation and suspend execution of the sentence imposed and entered on June 27, 1974. In view of our conclusions on this issue, we do not reach the issues presented in the parties' original briefs.

Absent statutory authority, the attempt to suspend imposition or execution of sentence is invalid. In re Nottingham, 84 Colo. 123, 268 P. 587 (1928); Grundel v. People, 33 Colo. 191, 79 P. 1022 (1905). Prior to the enactment of the Colorado Code of Criminal Procedure in 1972, such authority was expressly set forth in ...