People v. Thomas

525 P.2d 1136, 185 Colo. 395, 1974 Colo. LEXIS 935

• Court: Supreme Court of Colorado
• Decided: July 29, 1974
• Docket: 26174
• Status: Published

Opinions

MR. JUSTICE KELLEY

delivered the opinion of the Court.

Lester Thomas appeals the denial of his motion for post-conviction review of sentence pursuant to 1971 Perm. Supp., C.R.S. 1963, 40-1-510(1)(f). We reverse.

Appellant was charged with attempted burglary under 1967 Perm. Supp., C.R.S. 1963, 40-3-5, and 1967 Perm. Supp., C.R.S. 1963, 40-25-1. On July 13, 1972, he was convicted by a jury of this offense, and on August 21, 1972, he was sentenced to a term of imprisonment of not less than eight and one-half nor more than ten years.

Appellant filed notice of appeal from this judgment of conviction on September 8, 1972. While his appeal was pending, appellant, on June 12, 1973, filed his motion in the trial court for post-conviction review of sentence. As amended April 19, 1973, the statute authorizes post-conviction review where it is alleged:

“That there has been a significant change in the law, applied to appellant’s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard.” Colo. Sess. Laws 1973, ch. 152, 40-1-510(1 )(f) at 533.

The basis of appellant’s motion for relief was that section 40-2-101(4) and 40-4-203 of the Colorado Criminal Code, which became effective July 1, 1972, reclassified attempted second-degree burglary as a class five felony and under section 40-1-105 of the code the penalty was reduced to not less than one nor more than five years.

This case is not controlled by People v. Herrera, 183 Colo. 155, 516 P.2d 626. In Herrera we held that once an appellant has exhausted his appellate remedy of appeal and his conviction has become final, the trial court is without jurisdiction to entertain a motion for post-conviction review of sentence. In the instant case, however, appellant filed his motion before his conviction had become final. The court therefore had jurisdiction to entertain his motion for relief.

The record reflects the court conducted an evidentiary hearing. The defense presented evidence showing appellant had been a model prisoner. The prosecution introduced evidence showing several prior felony convictions. At the conclusion of the hearing, the court determined that the interests of justice would not be served by application of the changed legal standards. We disagree.

The legislature intended the changed legal standards to apply wherever constitutionally permissible. The amendment to the savings clause of the Criminal Code makes this clear. 1971 Perm. Supp., C.R.S. 1963, 40-1-103(2), provided: “The provisions of this Code do not apply to or govern the construction of, prosecution for, and punishment for any offense committed prior to July 1, 1972, or the construction and application of any defense to a prosecution for such an offense. Such an offense shall be tried and disposed of according to the provisions of law existing at the time of the commission thereof in the same manner as if this code had not been enacted.”

Effective April 19, 1973, this section was amended to read: “Except as otherwise expressly provided by section 40-1-510, the provisions of this code do not apply to or govern the construction of, prosecution for, and punishment for any offense committed prior to July 1, 1972, * * *.” (Emphasis added.) Colo. Sess. Laws 1973, ch. 152, 40-1-103(2) at 533. Section 40-1-510(1 )(f) expressly provides for the application of the changed legal standards. This is especially appropriate where a change in the law reducing the sentence intervenes before conviction is had and sentence is imposed, as in the present case.

The view that amendatory legislation mitigating the penalties for crimes should be applied to any case which has not received final judgment finds substantial support in the common law. See In re Estrada, 63 Cal.2d 740, 48 Cal. Rptr. 172, 408 P.2d 948; People v. Odom, 8 Ill. App. 3d 227, 289 N.E.2d 663; People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197; State v. Pardon, 272 N.C. 72, 157 S.E.2d 698; Belt v. Turner, 25 Utah 2d 230, 479 P.2d 791.

In view of the legislative intent to effectuate uniformity wherever possible, the trial court erred in refusing to apply the changed legal standard. Accordingly, on remand, the court should resentence in accordance with section 40-1-105 of the Criminal Code.

Judgment reversed and cause is remanded for resentencing.

MR. JUSTICE HODGES, MR. JUSTICE LEE, and MR. JUSTICE ERICKSON dissent.