Walters v. People

• Decision Date: 10 June 1968
• Docket Number: No. 22574,22574
• Citation: Walters v. People, 441 P.2d 647, 166 Colo. 90 (Colo. 1968)
• Parties: Eugene WALTERS, also known as Gene Walters, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 647

441 P.2d 647

166 Colo. 90

Eugene WALTERS, also known as Gene Walters, Plaintiff in Error, v.PEOPLE of the State of Colorado, Defendant in Error.

No. 22574.

Supreme Court of Colorado, In Department.

June 10, 1968.

Neil L. Carleton, Sterling, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., James W. Creamer, Jr., Asst. Atty. Gen., John P. Moore, Asst. Atty. Gen., for defendant in error.

McWILLIAMS, Justice.

Walters was charged and convicted upon trial by jury of the crime of burglary.Thereafter Walters waived his right to file a motion for new trial and asked that he be immediately sentenced.The trial court acquiesced in Walters' request and sentenced him to a term of from four to nine years in the state penitentiary.

While serving the aforementioned sentence Walters had a change of heart and determined to file and did file, Pro se, a motion for post conviction relief under Colo.R.Crim.P. 35(b).In connection with its determination of this motion the trial court examined its files and records and as a result thereof denied the motion.By writ of error Walters now seeks reversal of the adverse judgment thus suffered against him.

In his 35(b) motion Walters alleged that he was charged with the crime of larceny, but convicted and sentenced on a different crime, namely that of burglary.Also, he claims that his court appointed counsel was incompetent, and bases this conclusion on two grounds: (1) his counsel failed to apprehend that the charge against him was in reality larceny--not burglary; and (2) his counsel permitted him to waive his right to file a motion for new trial.

The record clearly discloses that Walters was charged with burglary, and not larceny.Specifically, he was charged with the breaking and entering of a store building with the intent to commit a larceny therein.And burglary was the crime for which he was thereafter convicted by a jury.Therefore, the contention that Walters was sentenced for a crime different from the one with which he was charged is without merit.

Furthermore, the record before us Affirmatively shows that Walters Knowingly waived his right to file a motion for a new trial.After the jury returned a guilty verdict, Walters verbally asked that he be immediately sentenced.The ensuing colloquy, involving the trial court, Walters, defense counsel and the district attorney, definitely indicates that Walters, who had previously been convicted of felonies on...