People v. Heath

516 P.2d 119, 183 Colo. 251

Opinion

MR. JUSTICE DAY

delivered the opinion of the Court.

This is an appeal from an order entered in the Pueblo County district court denying appellant postconviction relief. Crim. P. 35(b). We reverse and remand for an evidentiary hearing.

The issue framed in the trial court was on the allegation that when appellant entered a plea of guilty to the charge of assault with the intent to rob he was not made aware of the elements of assault and did not have knowledge thereof. C.R.S. 1963, 40-2-33; Crim. P. 11; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); People v. Colosacco, 177 Colo. 219, 493 P.2d 650 (1972). The district court denied the relief sought without benefit of an evidentiary hearing on that issue. The Attorney General has entered a limited confession of error, moving that the appellant receive a hearing. We agree.

The order denying the Rule 35(b) motion is reversed and the cause remanded to the district court for an evidentiary hearing to determine whether the defendant was advised of the elements of the charge against him and knowingly understood such elements when he entered his plea of guilty. People v. Canino, 181 Colo. 207, 508 P.2d 1273 (1973); People v. Alvarez, 181 Colo. 213, 508 P.2d 1267 (1973).