565 P.2d 935 | Colo. | 1977
delivered the opinion of the Court.
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.
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.