The People of the State of Colorado v. Ruby Anna Henderson
No. C-1426
Supreme Court of Colorado
Decided November 6, 1978.
(586 P.2d 229)
Paul H. Cragan, Don L. Nelson, for respondents.
En Banc.
MR. JUSTICE GROVES delivered the opinion of the Court.
We granted certiоrari to review the Colorado Court of Appeal‘s opinion which denied thе People‘s claim because it had not been raised in a timely fashion. People v. Henderson, 40 Colo. App. 147, 574 P.2d 872 (1977). The People contended for the first time on appeal that the district court lаcked jurisdiction to suspend the defendant‘s sentence. We find the issue to be prоperly before us, and we hold that the district court did have power to suspend thе sentence.
The defendant, Ruby Henderson, was convicted of resisting arrest.1 The distriсt court imposed a sentence of six months, but suspended the sentence on thе condition that the defendant conduct herself as a law abiding citizen. The defеndant did not request probation, nor can the court‘s sentence be read аs a grant of probation. The defendant did not appeal this conviction, but rather appealed the conviction mentioned in footnote 1.
Becаuse no motion for a new trial or cross-appeal had been filed, the court of appeals did not address the merits of the People‘s contention that the trial court lacked authority to suspend the defendant‘s sentence fоr resisting arrest. We agree with the People that the alleged defect is jurisdictional and, therefore, we consider the issue.
The People argue that section
The issue in People v. Ray, supra, was the deferral of the defendant‘s sеntence in conjunction with a grant of probation, whereas we are cоnsidering the suspension of defendant‘s sentence in the absence of a grant оf probation. We, however, find the language quoted above equally apрlicable to the present case; and we conclude that the legislature did not intend to limit the power of trial courts to suspend sentences by enacting sеction
The People respond that, while People v. Ray, supra, may establish that courts retain power to suspend sentences when they are granting probation, it is no authority for such power in the absence of such a grant. We do not agree that the absence of a grant of probation is a decisive factor. So long as the circumstances would have justified a grant of probation and the defendant was eligible for probation, the fact thаt the judge did not impose it does not vitiate his power to suspend sentences.
As the defendant did not object to the sentence, we reverse the court of appeals’ opinion that the defendant should be resentenced under that conviction. We return this matter to the court of appeals for remand to thе district court with directions consonant with the views expressed in this opinion.
MR. JUSTICE PRINGLE dissents.
MR. JUSTICE KELLEY does not participate.
MR. JUSTICE PRINGLE dissenting:
I respеctfully dissent for the reasons which I set forth in my dissenting opinion in People v. Ray, 192 Colo. 391, 560 P.2d 74 (1977).