Opinion
No. 25857
Decided November 18, 1974.
Defendant, who was convicted of two charges of aggravated robbery and sentenced to two consecutive terms in the state penitentiary of 30-40 years each — which was later commuted by the governor to concurrent rather than consecutive sentences — now seeks postconviction review of his sentence pursuant to 1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f). Trial court denied the motion and defendant appealed.
Affirmed
1. CRIMINAL LAW — Sentence Subsequently Reduced — Postconviction Relief — People v. Herrara — Adherence — Statute — Unconstitutional. Supreme Court adheres to its ruling in People v. Herrera, 183 Colo. 155, 516 P.2d 626, in which it was held that 1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f) — authorizing prisoners to seek postconviction relief where sentence for crime for which they were convicted is subsequently reduced — was unconstitutional due to fact that it encroached on governor's exclusive power to grant a commutation after conviction, thereby violating doctrine of separation of powers embodied in Colorado Constitution.
2. PARDON AND PAROLE — Commutation of Sentence — Governor — Supreme Court — — Alter — Lack of Jurisdiction. Where governor had commuted defendant's sentence, Supreme Court lacked jurisdiction to reduce, or in any way to alter or amend the sentence as commuted.
Appeal from the District Court of El Paso County, Honorable William M. Calvert, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, David A. Sorenson, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Thomas M. Van Cleave III, Deputy, for defendant-appellant.
On July 16, 1967, defendant Simms was convicted of two charges of aggravated robbery and sentenced to two consecutive terms in the state penitentiary of 30-40 years each. Later, his sentence was commuted by former Governor Love to concurrent rather than consecutive sentences. In July of 1972, pursuant to 1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f), Simms filed a pro se motion for post-conviction review of his sentence. He asked that the minimum term of his sentence be reduced to eight years, and that he be given credit on the minimum and maximum terms of the sentence for the amount of time spent in custody awaiting trial and sentence. The trial court denied the motion, and we affirm.
[1] In People v. Herrera, 183 Colo. 155, 516 P.2d 626, we held that section 40-1-510(1)(f) was unconstitutional in that it encroached on the governor's exclusive power to grant a commutation after conviction, Colo. Const. Art. IV, Sec. 7, thereby violating the doctrine of separation of powers embodied in Article III of the Colorado Constitution. We reject defendant's assertion that Herrera was wrongly decided, and adhere to our ruling in that case as we have done consistently since is was decided. People v. Fulmer, 185 Colo. 366, 524 P.2d 606; People v. Davis, 186 Colo. 186, 526 P.2d 312.
[2] In addition, since the governor has already commuted defendant's sentence, we lack jurisdiction to reduce, or in any way alter or amend the sentence as commuted. People v. District Court of the Twentieth Judicial District, 180 Colo. 107, 502 P.2d 420.
The judgment of the district court is affirmed.