People v. Ray , 192 Colo. 391 ( 1977 )

MR. CHIEF JUSTICE PRINGLE

dissenting:

I most respectfully dissent. As the majority points out, probation is a creature of statute. People v. Ledford, 173 Colo. 194, 477 P.2d 374 (1970). Without an authorizing statute, the overwhelming majority view is that the courts have no power to grant probation at all, nor to suspend the imposition or execution of a sentence. See, e.g., Grundel v. People, 33 Colo. 191, 79 P. 1022 (1905); In Re Nottingham, 84 Colo. 123, 268 P. 587 (1928); State v. Wright, 202 N.W.2d 72 (Iowa 1972); State v. Eighth Jud. Dist. Ct., 85 Nev. 485, 457 P.2d 217 (1969); State v. Dore, 69 Wash.2d 64, 416 P.2d 670 (1966); Varela v. Merrill, 51 Ariz. 64, 74 P.2d 569 (1937); Fayad v. Superior Court, 153 Cal. App. 2d 79, 313 P.2d 669 (1957).

I can find in my reading of the probation statute under consideration here no power to suspend the imposition or execution of a sentence. As a matter of fact, in an earlier probation statute that power was specifically given. It was taken out of the statute when the statute which was effective on the critical dates here was enacted. See the cogent analysis on this point by Judge Kelly in People v. Patrick, 38 Colo. App. 103, 555 P.2d 182 (1976).

I think the majority today approves a procedure whereby a district judge without express authority from the legislature takes it upon himself to defer sentencing after receiving a plea of guilty and then, upon the completion of a period of good behavior, wipes out the conviction itself. 1 think the majority has written into the statute words that are not there. To support this contention, I point out that after the dates in question here, the legislature itself passed a statute specifically authorizing the deferred sentencing procedure. I think this court should pay attention to the legislature’s own interpretation of its statutes.

MR. JUSTICE KELLEY authorizes me to state that he joins in this dissent.