Summary
holding defendant was entitled to subsequent change from felony conviction to petty offense
Summary of this case from People v. StellabotteOpinion
No. C-863
Decided June 6, 1977.
Defendant was convicted under then applicable law for a felony based on possession of over one-half ounce of cannabis and he was sentenced to five to eight years in the penitentiary. The court of appeals, 37 Colo. App. 100, 545 P.2d 727, affirmed, and certiorari was granted.
Vacated and Remanded
1. DRUGS AND DRUGGISTS — One-Half Ounce — Felony — Changed to Petty Offense — Resentenced — Final. Where defendant was found guilty of possession of over one-half ounce of cannabis and sentenced for the felony conviction after which legislature changed crime of possession of less than one ounce to a petty offense and reduced penalty to $100 fine and costs, and after court of appeals had affirmed conviction but before supreme court considered case trial court held hearing and resentenced defendant to $100 fine and costs and there was no appeal from judgment by either party, held, under these circumstances, the new judgment stands as final.
2. CRIMINAL LAW — Amendatory Legislation — Defendant — Entitled to Relief. A defendant is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction.
Certiorari to the Colorado Court of Appeals
Woodrow, Roushar Weaver, Gerald D. Weaver, for petitioner.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy, Edward G. Donovan, Solicitor General, Lynn Ford, Assistant, for respondent.
[1] In September 1974, the defendant was found guilty of possession of over one-half ounce of cannabis in violation of C.R.S. 1963, 48-5-2. He was sentenced to five to eight years in the State Penitentiary for this felony conviction. The state legislature subsequently changed the crime of possession of less than one ounce of cannabis to a petty offense and reduced the penalty to a $100 fine. Section 12-22-412(12)(a), C.R.S. 1973 (1976 Supp.). After the court of appeals had affirmed this conviction, 37 Colo. App. 100, 545 P.2d 727 (1975), but before we considered this case, the trial court held a hearing pursuant to Crim. P. 35(a). The court thereupon resentenced the defendant to a $100 fine and assessed costs. There was no appeal from the judgment by either party and under such circumstances, the new judgment stands as final.
[2] As we have repeatedly held, a defendant is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction. People v. Griswold, 190 Colo. 136, 543 P.2d 1251 (1975); Shook v. District Court, 188 Colo. 76, 533 P.2d 41 (1975); People v. Thornton, 187 Colo. 202, 529 P.2d 628 (1974); People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974). The defendant therefore stands convicted of a petty offense.
In view of our disposition of this case and statements made by counsel at the oral argument, we find it unnecessary to consider other allegations of error. Since the court of appeals opinion was based on the felony conviction, its judgment is vacated. The cause is remanded to the district court for proceedings consistent with this opinion.