Opinion
No. 75-022
Decided December 18, 1975.
Defendant's sentence following conviction was suspended with conditions, and subsequently revoked upon violation of the conditions. From the imposition of a new sentence following revocation, defendant appealed.
Judgment of November 29, 1973, affirmed, Judgment of October 21, 1974, vacated.
1. CRIMINAL LAW — Sentence Suspended — Conditions — Probationary Nature — Defendant — Ineligible for Probation — Suspension Void — Subsequent Revocation Invalid — Original Sentence — Enforceable. Where defendant was statutorily ineligible for probation by virtue of three prior felony convictions, the trial court's utilization of a suspended sentence with the condition that defendant successfully complete a certain program was merely another means of granting probation and therefore that suspension of sentence and the subsequent revocation proceedings based thereon were void, but the original sentence was not vitiated thereby and could be enforced.
Appeal from the District Court of the City and County of Denver, Honorable Zita L. Weinshienk, Judge.
J. D. MacFarlane, Attorney General, Edward G. Donovan, Solicitor General, Brooke Wunnicke, Chief Appellate Deputy District Attorney, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Lawrence J. Schulman, Deputy State Public Defender, for defendant-appellant.
Division II.
The defendant, Billy A. Crandall, appeals from a judgment and sentence entered on October 21, 1974, after a hearing which resulted in the revocation of a previous sentence, which had been entered on November 29, 1973, and the execution of which had been suspended on certain conditions. Although we conclude that the 1974 judgment and sentence cannot stand, we affirm the 1973 judgment and sentence.
The 1973 judgment and sentence was entered by the trial court after reception of Crandall's plea of guilty to attempted second degree forgery. In this judgment, the trial court explicitly denied probation and sentenced Crandall to the Colorado State Penitentiary for an indeterminate term not to exceed four years, nine months. Execution of this sentence was suspended "on condition said defendant successfully completes Cenikor program," and it was ordered that defendant be released from custody.
Less than a month after the entry of this judgment and sentence, Crandall absconded from the Cenikor facility, and shortly thereafter, the trial court issued an alias capias for his apprehension. He was arrested in September 1974 and a revocation hearing was held in October.
On October 21, 1974, the court entered an order of "Revocation of Suspended Execution of Sentence," and entered a second judgment and sentence in which Crandall was sentenced to an indeterminate term not to exceed four years, seven months. In this judgment, it was ordered that mittimus issue.
On appeal, Crandall contends that the trial court erred in refusing to consider his insanity at the time of the violation of the condition of his suspended sentence and in refusing to appoint a psychiatrist. He argues that there is no distinction between the revocation of probation and the revocation of a suspended sentence, and, relying on Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, contends that he is enshrouded with all the due process protections available at a hearing on revocation of probation.
[1] We do not reach the questions presented. The record reflects that the defendant was not eligible for probation, having been convicted of three prior felonies. See § 16-11-201(2), C.R.S. 1973. These provisions were "intended to prohibit a trial judge from circumventing the clear wording of the statute by utilizing a suspended sentence as a means for granting probation." Herrmann v. District Court, 186 Colo. 350, 527 P.2d 1168. Hence, the conditions of the suspension of execution of the 1973 judgment and sentence were void, as were all the proceedings subsequent thereto.
The invalidity of the attempt to suspend execution of the sentence does not, however, vitiate the judgment of conviction and the sentence of imprisonment, In re Nottingham, 84 Colo. 123, 268 P. 587, which may be enforced at any time after its entry by the issuance of a mittimus. See Mann v. People, 16 Colo. App. 475, 66 P. 452. As in Nottingham, the imprisonment of Crandall is by virtue, not of the void judgment of October 21, 1974, but of the valid sentence of November 29, 1973.
Accordingly, the judgment, sentence, and mittimus of October 21, 1974, are vacated. The judgment and sentence of November 29, 1973, is affirmed, and the cause is remanded to the trial court for issuance of mittimus thereon.
JUDGE ENOCH and JUDGE PIERCE concur.