Villalon v. People

• Decision Date: 30 January 1961
• Docket Number: No. 19489,19489
• Citation: 358 P.2d 1018,145 Colo. 327
• Parties: John VILLALON, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 1018

358 P.2d 1018

145 Colo. 327

John VILLALON, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 19489.

Supreme Court of Colorado, In Department.

Jan. 30, 1961.

Sam T. Taylor, Walsenburg, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., State of Colorado, Frank E. Hickey, Deputy Atty. Gen., Robert G. Pierce, Asst. Atty. Gen., for defendant in error.

McWILLIAMS, Justice.

Plaintiff in error was defendant in the trial court and will hereinafter be referred to as defendant.

On March 3, 1955 defendant was charged in a 4 count criminal information with kidnapping (count 1), assault with a deadly weapon with the intent to kill or murder (count 2), a prior felony conviction (burglary) in 1949 resulting in a sentence to the State Reformatory (count 3), a prior felony conviction (grand larceny) in 1951 resulting in a sentence to the State Penitentiary (count 4). Although the record fails to disclose either the date when defendant was arraigned or the pleas entered by him, it is readily apparent from the number and nature of trials which followed that when arraigned he entered a special plea of not guilty by reason of insanity at the time of the alleged commission of the offenses; a general plea of not guilty to counts 1 and 2, and denied that he was the person referred to in counts 3 and 4 of the information. On June 30, 1955 a jury returned a verdict finding defendant sane at the time of the alleged commission of the offenses charged in counts 1 and 2 of the information, and on July 11, 1955 a different jury found defendant guilty as charged in counts 1 and 2 of the information. Following receipt of these verdicts defendant was granted thirty days to file a motion for new trial. On July 12, 1955 apparently the same jury which had on July 11, 1955 found the defendant guilty under counts 1 and 2 returned verdicts finding defendant to be the same person referred to in counts 3 and 4 of the information. Defendant was again granted thirty days to file a motion for new trial. In due time motion for new trial was filed, and was argued and denied on September 6, 1955. On that same date the trial court imposed sentence as follows:

'And now neither the said defendant nor his counsel for him saying anything further why the judgment of the Court should not now be pronounced against him on the verdict of guilty as to Count No. 1; having twice before been convicted of felonies and sentenced under section 39-13-1 C.R.S.1953 heretofore rendered in this in this cause

'Therefore it is ordered and adjudged by the Court that the said defendant Johnnie B. Villalon, also known as John Villalon by [sic] taken from the bar of this Court to the common jail of Pueblo County, from whence he came, and from thence by the Sheriff of said Pueblo County, within ten days from this date to the Penitentiary of this State at Canon City, to be delivered to the Warden or Keeper of said Penitentiary and the said Warden or Keeper is hereby required and commanded to take the body of said defendant, Johnnie B. Villalon, also known as John Villalon, and confine him in said Penitentiary in safe and secure custody for and during the term of not less than sixty (60) years nor more than ninety (90) years from and after the delivery thereof, all of said term at hard labor, and that he be thereafter discharged. It is further ordered by the Court that this sentence as to Count No. 1 is to run concurrent with the sentence as to Count No. 2; and

'Therefore, it is ordered and adjudged by the Court that the said defendant, Johnnie B. Villalon, also known as John Villalon, be taken from the bar of this Court to the common jail of Pueblo County, from whence he came, and from thence by the Sheriff of said Pueblo County within ten days from this date to the Penitentiary of this State at Canon City, and be delivered to the Warden or Keeper of said Penitentiary and the said Warden or Keeper is hereby required and commanded to take the body of said defendant Johnnie B. Villalon, also known as John Villalon, and confine him in said Penitentiary in safe and secure custody for and during the term of not less than twenty-eight (28) years, nor more than forty-two (42) years from and after the delivery thereof, all of said term at hard labor, and that he be thereafter discharged. It is further ordered by the Court that this sentence as to Count No. 2 is to run concurrent with the sentence as to Count No. 1.'

On May 29, 1957 defendant filed a 'Motion to set aside a void and erroneous judgment, to discharge defendant or re-sentence him nunc pro tunc in accordance with the law * * *', and as grounds therefor it was contended that defendant was only nineteen years of age at the time he allegedly suffered the 'felony' conviction referred to in count 3 of the information, and that accordingly under the definition of a 'felony' as that word is defined by this court is Smalley v. People, 134 Colo. 360, 304 P.2d 902 (decided December 3, 1956; rehearing denied December 31, 1956) defendant did not in fact suffer a 'felony' conviction when in 1949 he was convicted of burglary and sentenced to the State Reformatory. This motion was argued on June 3, 1957, at which time the trial court granted the motion, vacated the previous sentences and re-sentenced defendant to not less than 29 years nor more than 30 years under count 1, and not less than 13 years nor more than 14 years under count 2, such sentences to run consecutively.

On April 6, 1960 defendant again filed with the trial court a 'Motion to set aside a void and erroneous judgment and sentence; to discharge defendant, and for other orders.' On May 16, 1960 this motion, after argument, was denied by the trial court, and the defendant is here by writ of error seeking...