People v. Turner, 82SA48
| Decision Date | 10 May 1982 |
| Docket Number | No. 82SA48,82SA48 |
| Citation | 644 P.2d 951 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. John TURNER, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Dennis E. Faulk, Dist. Atty., Canon City, Steven B. Rich, Deputy Dist. Atty., Fairplay, for plaintiff-appellant.
No Appearance for defendant-appellee.
On this appeal the People request us to determine whether section 16-7-403(2), C.R.S.1973 , which provides that upon revocation of a deferred judgment and sentence "the court shall enter judgment and impose sentence," prohibited the district court from granting the defendant probation when it revoked his deferred judgment and sentence for felony theft, and, instead, required the court to impose a sentence of imprisonment. We conclude that the court had the authority to grant probation to the defendant and, therefore, we affirm the judgment.
The facts are not in dispute. On September 11, 1980, an information was filed charging the defendant with felony theft, a class 4 felony, in violation of section 18-4-401, C.R.S.1973 . Pursuant to a plea agreement with the district attorney the defendant tendered a plea of guilty to the charge on March 17, 1981. The court accepted the guilty plea, deferred the entry of judgment and the imposition of sentence for a period of two years, and placed the defendant under the supervision of the probation department. The written terms and conditions of the supervision were acknowledged and accepted by the defendant. On November 18, 1981, the probation department filed a petition to revoke the deferred judgment and sentence because the defendant had violated the terms and conditions of his probationary supervision. After an evidentiary hearing the court sustained the petition to revoke and entered a judgment of conviction on the defendant's plea of guilty to felony theft. The defendant previously had not been convicted of any prior felonies and, therefore, was eligible for probation under section 16-11-201(2), C.R.S.1973 . 1 The court granted the defendant probation and ordered the defendant to serve 15 weekends in the county jail as one of the conditions of probation. 2 It is this order granting the defendant probation which the district attorney challenges on this appeal.
Section 16-7-403(1), C.R.S.1973 , authorizes the court, upon the written stipulation of the defendant, the defendant's attorney and the district attorney, to accept a plea of guilty and to defer the entry of judgment and the imposition of sentence for a period of two years, during which time the defendant may be placed under the supervision of the probation department. Section 16-7-403(2), C.R.S.1973 , outlines the consequences flowing from such a disposition:
(emphasis added).
The People contend that the statutory language "the court shall ... impose sentence" requires the court to impose a sentence of imprisonment rather than some other alternative to imprisonment, such as probation. We disagree with the People's contention.
A "sentence" generally refers to that part of a judgment which describes the punishment imposed by the court following the defendant's conviction for a criminal offense. See, e.g., Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943). To constitute a "sentence," the punishment need not take the form of imprisonment. The Colorado Code of Criminal Procedure expressly refers to various forms of sentences, which include the following: a sentence to imprisonment at a correctional facility, sections 16-11-101(1)(b) and 16-11-301, C.R.S.1973 ; a sentence to the payment of a fine, sections 16-11-101(1)(e) and 16-11-502(2), C.R.S.1973 ; and a sentence "to comply with any other court order authorized by law," section 16-11-101(1)(f) . Clearly, a sentence "to comply with any other court order authorized by law" includes an order placing the defendant on probation. In fact, various sections of the Colorado Code of Criminal Procedure refer to a grant of probation as a form of sentence. For example, section 16-11-204(1), C.R.S.1973 , requires the court to provide "as explicit conditions of every sentence to probation that the defendant not commit another offense...." Section 16-11-203, C.R.S.1973 , outlines the criteria for granting probation and permits the court to exercise its discretion in granting probation unless "it is satisfied that imprisonment is a more appropriate sentence for the protection of the public because ... (c) A sentence to probation will unduly depreciate the seriousness of the defendant's crime or undermine respect for the law...." Given the legislative ascription of various forms of judicial punishment to the word "sent...
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