dissenting:
The majority disagrees with defendant’s contention that his three life sentences should run concurrently because they were based on a series of acts arising from the same criminal episode. I concur with the majority on this issue — and that was the only issue raised by defendant on this appeal.
Section 18-1-408(3), C.R.S.1973 (1978 Repl. Vol. 8) requires the imposition of concurrent sentences only when the counts for which defendant was convicted were supported by identical evidence. People v. Anderson, 187 Colo. 171, 529 P.2d 310 (1974); People v. Knaub, Colo.App., 624 P.2d 922 (1980). Here, three separate criminal acts were committed, and the evidence supporting each of the resulting counts cannot be characterized as identical. See People v. Anderson, supra; Cf. People v. O’Donnell, 184 Colo. 104, 518 P.2d 945 (1974). Hence, the trial court was not required to impose concurrent sentences. See § 18-1-408(3), C.R.S.1973 (1978 Repl. Vol. 8).
Although this issue was not raised by the parties, the majority holds that the consecutive life sentences were illegal as an unconstitutional violation of the doctrine of separation of powers. I do not question that an illegal sentence may be reviewed and corrected at any time, People v. Favors, 42 Colo.App. 263, 600 P.2d 78 (1979), but I do not agree that these sentences are illegal.
There is nothing in the record to indicate that the consecutive life sentences were imposed for the purpose of prohibiting action by the parole board. And, it is an open question in this state how § 17-2-207(2), C.R.S.1973 (1978 Repl.Vol. 8), which specifies that “[n]o prisoner imprisoned under a life sentence shall be paroled until he has served at least twenty calendar years,” would be interpreted after this defendant has served the first twenty years. Nor is the date a defendant may be eligible for parole relevant to a determination of the severity of a sentence. People v. Pacheco, 41 Colo.App. 188, 581 P.2d 741 (1978).
Consecutive life sentences have been upheld on appeal in State v. McNally, 152 Conn. 598, 211 A.2d 162 (1965), cert. denied, 382 U.S. 948, 86 S.Ct. 410, 15 L.Ed.2d 356 (determination as to concurrent or consecutive incident to the judicial function of imposing sentences); Chavigny v. State, 112 So.2d 910 (Fla.App.1959), cert. denied, 114 So.2d 6 (Fla.), cert. denied, 362 U.S. 922, 80 S.Ct. 676, 4 L.Ed.2d 742 (penalties permitted by statute; relief by way of reducing the term a matter for parole authorities); Morris v. Commonwealth, 268 S.W.2d 427 (Ky.App.1954) (sentencing and parole are separate and distinct functions of government — first a judicial function, later a prerogative of the executive department); State v. Maxey, 42 N.J. 62, 198 A.2d 768 (1964) (power to impose consecutive life sentences resides in the trial judge; such sentences not repugnant to purposes of parole act); State v. Bruce, 268 N.C. 174, 150 S.E.2d 216 (1966) (sentences did not exceed limits fixed by the applicable statutes); State v. Brudos, 3 Or.App. 239,471 P.2d 861 (1970) (rejecting argument all life sentences must be concurrent); State v. Ogden, 21 Wash.App. 44, 584 P.2d 957 (1978) (no error in imposition of two consecutive life sentences under habitual criminal act).
The majority has cited no decisions by any appellate courts which have set aside or even disapproved of consecutive life sentences, and I have found none. I would uphold the sentences, and would affirm the trial court’s denial of defendant’s Crim.P. 35(a) motion.