Fidel A. Perea v. The District Court in and for the Sixth Judicial District, and Oakley Wade, One of the Judges thereof
No. 79SA487
Supreme Court of Colorado
Decided December 17, 1979
Rehearing denied December 24, 1979
(604 P.2d 25)
J. Gregory Walta, State Public Defender, Harvey Palefsky, Deputy, for petitioner.
Craig S. Westberg, District Attorney, for respondent.
JUSTICE ERICKSON delivered the opinion of the Court.
Fidel A. Perea petitioned for a writ of mandamus to compel the district court to grant him credit for 101 days presentence confinement time. We issued a rule to show cause and now discharge that rule.
Perea was arrested and charged with first and second-degree assault.
When Perea was sentenced, he requested that he be given credit for 101 days of presentence confinement. The trial judge refused the request on the ground that granting credit for presentence confinement was within his discretion and was not a matter of right.
In People v. Martinez, 192 Colo. 388, 559 P.2d 228 (1977), we recognized that there is no constitutional right to credit for presentence confinement. See People v. Johnson, 185 Colo. 285, 523 P.2d 1403 (1974); People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973); People v. Coy, 181 Colo. 393, 509 P.2d 1239 (1973); People v. Scott, 176 Colo. 86, 489 P.2d 198 (1971); People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971). In the absence of statutory authority to the contrary, the trial judge is not required to grant credit for presentence incarceration.
“If the sentence imposed is longer than the statutory maximum for the offense less the amount of allowable presentence confinement, it shall be presumed that the judge did not consider the presentence confinement.”
That statute requires an initial presumption that the judge did not consider the period of presentence confinement where the total period of confinement exceeds the statutory maximum.1
Accordingly, the rule is discharged.
JUSTICE DUBOFSKY dissents.
JUSTICE DUBOFSKY dissenting:
I respectfully dissent.
Credit for presentence confinement in the circumstances of this case is a matter of constitutional right, and the defendant‘s request for credit should have been granted by the trial court.
When, as here, a defendant is incarcerated before sentence because he cannot afford bail and, subsequently, he receives a maximum sentence without credit for his presentence confinement, he is serving a sentence which a richer person would not serve. This violates the basic principle enunciated in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). There, the United States Supreme Court held that a class of people could not be subject to a conviction beyond the statutory maximum solely on the basis of indigency. See also Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971).
The basic premise of these cases is that the burden of incarceration falls disproportionately upon the indigent, violating equal protection. Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974); In re Young, 32 Cal.App.3d 68, 107 Cal. Rptr. 915 (1973); Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973); King v. Wyrick, 516 F.2d 321 (8th Cir. 1975); Johnson v. Prast, 548 F.2d 699 (7th Cir. 1977). To prevent disproportionate sentences served by indigents, credit for time served should be given in all cases where there is presentence incarceration for failure to make bond. King v. Wyrick, supra; Johnson v. Prast, supra.
Therefore, I would make the rule absolute and remand the case to the district court to grant credit for presentence confinement.