People v. Spann

• Citation: 37 Colo.App. 152,549 P.2d 427
• Decision Date: 28 November 1975
• Docket Number: No. 75--091,75--091
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George Philip SPANN, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 427

549 P.2d 427

37 Colo.App. 152

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George Philip SPANN, Defendant-Appellant.

No. 75--091.

Colorado Court of Appeals, Div. II.

Nov. 28, 1975.

Rehearing Denied Jan. 22, 1976.

Certiorari Granted May 3, 1976.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., William J. Donlon, Jr., Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, Mary G. Allen, Deputy State Public Defender, Denver, for defendant-appellant.

SMITH, Judge.

Defendant pleaded guilty to killing a calf in violation of what is now § 35--43--128, C.R.S.1973, and was sentenced to a term of not less than three nor more than five years in the state penitentiary. Within 120 days thereafter, he moved that the trial court reduce his sentence under Crim.P. 35(a). The trial court denied this motion, and defendant appeals. We affirm.

The statute under which defendant was convicted, § 35--43--128, C.R.S.1973, provides, Inter alia, that any person convicted thereof 'shall be punished by imprisonment in the state penitentiary for not less than one year nor more than ten years and by a fine of not less than two hundred dollars nor more than five thousand dollars.' The sentence imposed was within those limits.

We must reject defendant's argument that the general theft statute, providing a lesser penalty, should govern the sentence. Section § 18--1--108, C.R.S.1973, provides:

'Any felony, misdemeanor, or petty offense defined by state statute outside this code without specification of its class shall be punishable as provided in the statute defining it, or as otherwise provided by law outside this code.'

The sentence was therefore neither an illegal sentence nor was it illegally imposed, and defendant's request under Crim.P. 35(a) can only have been a request to reconsider and reduce the sentence imposed. The trial court, in the excercise of its discretion, chose not to do so. While we feel the sentence imposed is excessive under the facts in this case, that decision is not reviewable because determination of the sentence to be received by an individual defendant is a matter left to the discretion of the trial court, within the bounds provided by the legislature. People v. Jenkins, 180 Colo. 35, 501 P.2d 742; Smith v. People, 162 Colo. 558, 428 P.2d 69.

Where the court acts within its statutory discretion relief from the sentence imposed has been held to lie only with the executive. Walker v. People, 126 Colo. 135, 248 P.2d 287; Olguin v. People, 115 Colo. 147, 170 P.2d 285. The only exception to this rule is the statutory review of sentence procedure appearing in § 18--1--409, C.R.S.1973, which, while authorizing review of sentences in some cases, specifically precludes appellate review where the minimum sentence imposed is not more than three years greater than the minimum sentence provided for that offense. Such is not the case here.

The denial of defendant's motion is affirmed.

RULAND, J., concurs.

KELLY, J., dissents.

KELLY, Judge (dissenting):

I respectfully diss...