People v. Smith, 26680
| Citation | 189 Colo. 50,536 P.2d 820 |
| Decision Date | 16 June 1975 |
| Docket Number | No. 26680,26680 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David SMITH, Defendant-Appellant. |
| Court | Colorado Supreme Court |
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Donna A. Maranchik, Janet Lee Miller, Asst. Attys. Gen., Denver, for plaintiff-appellee.
Peter H. Ney, P.C., Denver, for defendant-appellant.
We are called upon in this appeal to determine the constitutional validity of Crim.P. 35(a), insofar as it permits a trial court, upon motion, to reduce a sentence within 120 days after sentence is imposed by the court. The district court denied appellant's motion to reduce sentence on the basis of our pronouncement in People v. Herrera, 183 Colo. 155, 516 P.2d 626. There, we held that after finality had attached to a conviction relief from a sentence validly imposed could not be obtained through the judiciary but rather must be had through the Executive Department by way of commutation. We do not agree with the district court and therefore reverse.
Appellant was convicted on his plea of guilty to dispensing narcotic drugs in violation of C.R.S.1963, 48--5--2. 1 The penalty for this offense is imprisonment in the state penitentiary for not less than two nor more than fifteen years for a first offense. Appellant was sentenced to a term of not less than three nor more than five years. 2
Crim.P. 35(a) provides as follows:
* * *' We hold that Crim.P. 35(a) is a valid procedural rule promulgated pursuant to the rule-making power of this court under Section 21, Article VI of the Constitution of Colorado, and that it does not encroach upon the Governor's exclusive power of commutation under Section 7, Article IV of our constitution. The rule suspends the finality of the conviction for a period of 120 days from the time sentence is imposed, or for 120 days after final disposition on appeal, to allow the filing of a motion for reduction of sentence in the trial court.
Thus, as the rule suspends the concept of finality of a criminal judgment of...
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