Silva v. People, 21484
| Decision Date | 25 October 1965 |
| Docket Number | No. 21484,21484 |
| Citation | 407 P.2d 38,158 Colo. 326 |
| Parties | Richard Warren SILVA, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Roger M. Breyfogle, Canon City, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.
The plaintiff in error, Richard Warren Silva, brings writ of error here from a conviction of the crime of felonious escape. He will be referred to as the defendant, or by name.
The evidence showed that on September 11, 1961, Silva was sentenced on two separate convictions of burglary, the court imposing a sentence in the state penitentiary of three to five years on one conviction, and of two to five years on the other. It was ordered that the two sentences run consecutively. Silva entered the prison on October 11, 1961. On July 28, 1963, while assigned to the Medium Security Division of the penitentiary, he escaped. He was found and returned to the penitentiary the next day.
Based on these events, Silva was charged with the crime of escape by a felon, under Chapter 111, p. 331, Session Laws of 1963, now C.R.S. 1963, 40-7-53. The jury found him guilty, and he was sentenced to a three to five year term in the penitentiary, to run consecutively with his previous sentences.
In addition, because of his escape, Silva received disciplinary punishment, under the terms of C.R.S. '53, 39-18-4(2) and C.R.S. '53, 105-4-6, which provide respectively, that:
'No prisoner confined in the state prison and no prisoner under sentence to the state prison who has escaped * * * from the prison * * * may be paroled or discharged until he has served at least two calendar years from and after the date of his return to the prison * * * and during such two years such prisoner shall not be credited with any good time whatsoever.'
* * *
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'If any convict shall escape * * * from the penitentiary, he shall forfeit all deductions from the time of his sentence which he shall have earned under sections 105-4-4 and 105-4-5. * * *'
Three arguments have been presented for our determination: (1) the imposition of a sentence for the crime of escape, and the enforcement of the terms of C.R.S. '53, 39-18-4(2) and C.R.S. '53, 105-4-6 constitute dual punishment for a single act; (2) the prosecution failed to identify the defendant as the same Richard Warren Silva sentenced to the penitentiary from the Denver District Court; and (3) it was error to allow evidence of two prior convictions of the defendant, when only one was necessary to prove the crime of escape.
At the outset, we note that the statutory declaration that the escapee shall not be discharged for two years after his return will not cause Silva to be held past the maximum length of the two sentences he received for the convictions of burglary. Under these sentences, he was given a maximum term of ten years. Since he entered the penitentiary on October 11, 1961, the full term would run to October 11, 1971. He contends here that the denial of eligibility for parole for two years, the denial of eligibility to accumulate good time for two years, and the loss of previously accumulated good time is punishment which, together with the sentence for the crime of escape, would constitute dual punishment for a single act, escape. We do not agree.
Acts authorizing the parole of convicts are only an exercise of the power of discipline possessed by the state, implemented through the legislature. Parole is a privilege, and no prisoner is entitled to it as a matter of right. Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655; Berry v. State Board of Parole, 148 Colo. 547, 367 P.2d 338. Thus, a legislative determination that an escape shall not be eligible for parole or the accumulation of good time for a certain period is not an additional punishment. Rather it is a declaration under the state's disciplinary power that the state will not confer on a prisoner who escapes the privilege of early release from the penitentiary, and...
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