People v. Vigil, 76-026
| Decision Date | 02 June 1977 |
| Docket Number | No. 76-026,76-026 |
| Citation | 570 P.2d 13,39 Colo.App. 371 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph D. VIGIL, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John R. Rodman, E Ronald Beeks, Asst. Attys. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Dorian E. Welch, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant Joseph Vigil was convicted by a jury of second degree burglary on September 2, 1975. Under the terms of the habitual criminal statute then in effect, § 16-13-101(1), C.R.S.1973, he was sentenced to a term of 40 to 41 years, but in consideration of jail time served, the minimum term was reduced to 37 years. The minimum sentence permissible under that statute was 40 years. After Vigil was sentenced, the habitual criminal statute was amended by Colo.Sess.Laws 1976, ch. 93. The new statute provides for a minimum sentence of as low as 25 years in defendant's case. See § 16-13-101, C.R.S.1973 (1976 Cum.Supp.). Vigil appeals the burglary conviction and, alternatively, seeks to have the case remanded to the trial court for resentencing under the new statute. We affirm the judgment of conviction but remand for resentencing.
In seeking reversal of the burglary conviction, Vigil first asserts that the trial court erred in limiting the scope of cross-examination of the principal prosecution witness. This issue is not properly before us since it was not raised by the motion for new trial, Crim.P. 33(a); Cook v. People, 129 Colo. 14, 266 P.2d 776 (1954), nor does it constitute plain error under Crim.P. 52(b).
Vigil's other attack on the conviction is based on the fact that a police officer first testified about the contents of defendant's in-custody statement and, over objection, later was allowed to read part of that statement to the jury. No question is raised as to the voluntariness of the statement; and the emphasis given it by, in effect, allowing it to be presented twice, does not, under the circumstances here, constitute reversible error. People v. Kleiman, Colo., 554 P.2d 306 (1976).
As to the issue of the review of defendant's sentence, the People originally asserted that the prerequisites to appellate review do not exist because the minimum sentence imposed does not exceed by more than three years the minimum provided for in the statute, and timely review was not first sought in the trial court. Section 18-1-409, C.R.S.1973 (1976 Cum.Supp.). See People v. Marlott, Colo., 552 P.2d 491 (1976); People v. Thornton, 187 Colo. 202, 529 P.2d 628 (1974).
However, based upon People v. Renfrow, Colo., 564 P.2d 411 (Supreme Court No. 26948, announced May 2, 1977), the People now confess error. There, although the issue had not been raised by the parties, an habitual criminal case was remanded for resentencing pursuant to People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974). We consider Renfrow and its interpretation of Thomas to be dispositive here. The record discloses that the same apparent statutory impediments to review were present in Renfrow as exist here. Thus, Renfrow requires that the possible ameliorative benefits of the amended habitual criminal statute be made available to Vigil notwithstanding the requirements of § 18-1-409, C.R.S.1973 (1976 Cum.Supp.).
A problem may be encountered in the trial court upon resentencing under the new statute. Following his conviction of second degree burglary charges in this case, Vigil's felony record was as follows:
Second degree burglary 1975 (this conviction)
Forgery 1971
Forgery 1969
Aggravated robbery 1963
Thus, at the time of the habitual criminal sentencing proceedings in the trial court, Vigil's record showed the conviction in this case and three prior felonies. Apparently as the result...
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Schuler v. State
...relevant are adjoining states of Utah, Colorado and Nebraska. Nearly identical in persuasion are the Colorado cases, People v. Vigil, 39 Colo.App. 371, 570 P.2d 13 (1977), aff'd in part and rev'd in part 196 Colo. 522, 587 P.2d 1196 (1978); People v. Bloom, 195 Colo. 246, 577 P.2d 288 (1978......
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