People v. Falgout

Mr. Justice Erickson

delivered the opinion of the Court.

Frank L. Falgout was convicted of simple robbery and sentenced to a term of seven to ten years in the Colorado State Penitentiary. Thereafter, with the advice of counsel, he invoked the provisions of Colo. R. Crim. P. 38 (a) (2) and remained in the county jail pending resolution of an appeal. Incidental to his election under Colo. R. Crim. P. 38 (a) (2), the defendant’s sentence was stayed. After his appeal was dismissed, he was sent to the penitentiary to commence service of his sentence. He now seeks credit for the time which he served in the county jail pending the disposition of his appeal. The district court denied his motion for post-conviction relief, and he then prosecuted this appeal.

Our decision in this case is governed by our holding in People v. Scott, 176 Colo. 86, 489 P.2d 198. There, we found that a denial of credit for time spent in the county jail pending appeal was not a violation of the defendant’s rights under the Sixth Amendment, the due process clause of the Fourteenth Amendment, or under the double jeopardy provisions of the Fifth Amendment to the United States Constitution.

Accordingly, we affirm the trial court’s decision denying the defendant credit for the so-called “dead time” which he elected to serve in the county jail while his appeal was pending.

Judgment affirmed.