dissenting.
I respectfully dissent.
The People contend that their appeal of a Crim.P. 35(c) motion to vacate judgment deprives the trial court of jurisdiction to hear the Crim.P. 35(b) motion for reduction of sentence. I see nothing in either Crim.P. 35(b) or Crim.P. 35(c) that would so limit the trial court. The defendant properly filed both his Crim.P. 35(b) motion, which must be filed within 120 days of the trial court’s receipt of a remittitur from the appeals court, and his Crim.P. 35(c) motion, which may be filed at any time. The sentence reconsideration under Crim.P. 35(b) is separate from the merits of the People’s appeal of the defendant’s successful motion under Crim.P. 35(c).1
Under the old version of Crim.P. 35 the power to reduce a sentence is suspended during the statutory appeal of a judgment convicting and sentencing a defendant. People v. Francis, Colo., 630 P.2d 82 (1981); People v. Foster, Colo., 615 P.2d 652 (1980). However, we have noted explicitly that the amended Crim.P. 35, effective November *6813, 1979, does not contain the language of the old provision precluding trial court jurisdiction to reduce a sentence pending the conclusion of an appeal.2 People v. Francis, supra at 84, n. 13; People v. Foster, supra at 654, n. 3. The effect of the majority’s approach in the case before us is to return to the earlier version of Crim.P. 35 applied in Francis and Foster. In my opinion, under the current version of Crim.P. 35, the pendency of an appeal on a Crim.P. 35(c) matter does not preclude trial court consideration of a motion brought under Crim.P. 35(b). Compliance with the terms of Crim.P. 35(b) is all that is required.
The majority’s reading of Crim.P. 35(b)(1) essentially modifies it to read that a 35(b) motion may be filed “within 120 days after the sentence is imposed unless an appeal has been filed.” The effect of this de facto modification is to force a defendant to choose at the outset between an appeal and a sentence reconsideration motion. Notice of appeal must be filed within 30 days of the entry of judgment, C.A.R. 4(b); Crim.P. 32(c). While theoretically, a defendant could file a Crim.P. 35(b) motion for reconsideration of sentence before the expiration of the 30-day period, rarely as a practical matter will a trial court have additional information not available at sentencing upon which to base its sentence reconsideration. The penitentiary diagnostic center’s recommended rehabilitation report is not prepared until the defendant has spent a maximum of ninety days in the center. Section 17-40-103(1), C.R.S.1973.
The language of the majority’s opinion sweeps beyond appeals under Crim.P. 35(c) to encompass all appeals of final judgments in criminal cases, holding that the jurisdiction of a trial court terminates if a final judgment is appealed, and is not restored until resolution of the appeal.3 While I would not object to a rule which requires a defendant whose conviction or sentence is on appeal to file a motion for a limited remand to the trial court seeking post-trial reconsideration of sentence, I think there are many situations in which the trial court retains jurisdiction during the pendency of an appeal. Section 18-1-410, C.R.S.1973, and Crim.P. 35(c) set forth some of these situations. Another is the provision of the Colorado Diagnostic Program, sections 17-40-101 et seq., C.R.S.1973 (1980 Supp.), which allows a court to grant probation or modify a sentence upon receipt of the diagnostic center’s recommended rehabilitation report. Section 17-40-103(1), C.R.S.1973. See People v. District Court, Colo., 636 P.2d 689 (1981). See also Crim.P. 46(b), Crim.P. 46.1(a)(2) and C.A.R. 9(b) allowing the trial court to consider a defendant’s motion for an appeal bond or reduction of an appeal bond during the pendency of an appeal. The majority’s broad statement nullifies section 18-1-410, section 17-40-103(1) and Crim.P. 35(c) during the often lengthy period while a defendant awaits an appellate resolution of his case.4
I would discharge the rule.
I am authorized to say that Justice ERICKSON and Justice QUINN join in this dissent.
. The defendant is not entitled to appeal a reconsideration of a sentence by a trial judge based on a Crim.P. 35(b) motion. People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980).
. Crim.P. 35(a) at issue in Francis and Foster provided that “[t]he [trial] court may not reduce a sentence reviewed by an appellate court pursuant to C.A.R. 4(c) except as ordered by the reviewing court.”
. People v. Jones, Colo., 631 P.2d 1132 (1981), upon which the majority relies, involved a trial court order entered after an appellate decision but before the mandate issued; it was not a Crim.P. 35 case.
. The defendant here waited three and three-quarters years for appellate resolution of his conviction.