826 P.2d 382 | Colo. Ct. App. | 1991
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Steven SIMONS, Defendant-Appellant.
Colorado Court of Appeals, Div. V.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Joan E. Mounteer, Jenine Jensen, Deputy State Public Defenders, Denver, for defendant-appellant.
Opinion by Judge NEY.
Defendant, Steven Simons, appeals the order of the trial court denying his Crim.P. 35(c) motion for post-conviction relief. We vacate the order and remand for further proceedings.
*383 Defendant entered a plea of guilty to a charge of first degree sexual assault. Subsequently, he filed a motion for postconviction relief, alleging that he had received ineffective assistance of counsel and had been inadequately advised of the consequences of his plea. The trial court denied the motion without making any findings of fact or conclusions of law.
Defendant contends that the trial court impermissibly denied his motion without a hearing and failed to make any findings of fact or conclusions of law. We perceive no error in the denial of the motions without a hearing, however, we agree the trial court erred in failing to make any findings or conclusions of law.
A motion under Crim.P. 35(c) may be dismissed without a hearing if the motion, the files, and the record clearly establish that the defendant is not entitled to relief. See White v. Denver District Court, 766 P.2d 632 (Colo.1988). The record here supports the trial court's determination of the motion without a hearing.
However, Crim.P. 35(c) specifically requires that the trial court make findings of fact and conclusions of law in resolving all appropriate issues raised in defendant's motion. People v. Crater, 182 Colo. 248, 512 P.2d 623 (1973).
Here, since the trial court did not comply with Crim.P. 35(c), the order is vacated, and the cause is remanded for findings of fact and conclusions of law.
PLANK and JONES, JJ., concur.
