People v. Sandoval, 75--293

• Decision Date: 11 September 1975
• Docket Number: No. 75--293,75--293
• Citation: 36 Colo.App. 403,541 P.2d 105
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christine Yvonne SANDOVAL, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 105

541 P.2d 105

36 Colo.App. 403

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christine Yvonne SANDOVAL, Defendant-Appellant.

No. 75--293.

Colorado Court of Appeals, Div. II.

Sept. 11, 1975.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Janet Lee Miller, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Davies & Saint-Veltri, Stuart A. Kritzer, Denver, for defendant-appellant.

KELLY, Judge.

Defendant pleaded nolo contendere to a charge of violating § 18--5--205(3)(b), C.R.S.1973, fraud by check, a class 5 felony, which is punishable by a minimum of one year and a maximum of five years' imprisonment. Section 18--1--105, C.R.S.1973. She was initially sentenced for an indeterminate period, not to exceed one year, at the 'Reformatory Section of the Women's Colorado State Penitentiary.' Three days later, the trial court placed defendant on probation for a period of four years.

In January 1975, probation was revoked and defendant was sentenced to a term of not less than two nor more than four years at the 'State Penitentiary for Women at Canon City.' A month later, defendant filed a motion for postconviction relief under Crim.P. 35, alleging the foregoing facts, among others, and asserting that the original sentence was legal, and that the trial court was, therefore, without jurisdiction to alter or amend that sentence. Defendant sought vacation of the 1975 sentence and reinstatement of the original sentence. Her motion was denied, and she appeals. We affirm in part and reverse in part.

The provisions of § 16--11--304(2)(a), C.R.S.1973, govern both of the sentences imposed by the trial court, and are dispositive of this appeal. The statute provides:

'When a person has been convicted of a class 4 or a class 5 felony, the court shall not fix a minimum time of confinement to be served by the convict, but shall fix a maximum period of time beyound which he shall not be imprisoned, which maximum sentence shall be no more than the maximum penalty provided by law for the offense of which he was convicted, nor no less than one-third of the maximum penalty provided by law for the offense of which he was convicted.'

Under this statute, the original sentence imposed by the trial court was erroneous. However, the order granting probation was properly entered, See §§ 16--11--101(1)(a) and 16--11--202, C.R.S.1973, and, upon revocation of probation, the trial court was authorized to 'impose...