People v. Simms

528 P.2d 228 (1974)

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
James Edward SIMMS, Defendant-Appellant.

No. 25857.

Supreme Court of Colorado, En Banc.

November 18, 1974.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Thomas M. Van Cleave III, Deputy State Public Defender, Denver, for defendant-appellant.

PRINGLE, Chief Justice.

On July 16, 1967, defendant Simms was convicted of two charges of aggravated robbery and sentenced to two consecutive terms in the state penitentiary of 30-40 years each. Later, his sentence was commuted by former Governor Love to concurrent rather than consecutive sentences. In July of 1972, pursuant to 1971 Perm.Supp., C.R.S.1963, 40-1-510(1)(f), Simms filed a pro se motion for post-conviction review of his sentence. He asked that the minimum term of his sentence be reduced to eight years, and that he be given credit on the minimum and maximum terms of the sentence for the amount of time spent in custody awaiting trial and sentence. The trial court denied the motion, and we affirm.

In People v. Herrera, Colo., 516 P.2d 626, we held that section 40-1-510(1)(f) was unconstitutional in that it encroached on the governor's exclusive power to grant a commutation after conviction, Colo.Const. Art. IV, Sec. 7, thereby violating the doctrine of separation of powers embodied in Article III of the Colorado Constitution. We reject defendant's assertion that Herrera was wrongly decided, and adhere to our ruling in that case as we have done consistently since it was decided. People v. Fulmer, Colo., 524 P.2d 606; People v. Davis, Colo., 526 P.2d 312.

In addition, since the governor has already commuted defendant's sentence, we lack jurisdiction to reduce, or in any way alter or amend the sentence as commuted. People v. District Court of the Twentieth Judicial District, 180 Colo. 107, 502 P.2d 420.

The judgment of the district court is affirmed.