People v. Smith

TURSI, Judge,

dissenting.

I respectfully dissent.

I do not dispute that § 16-11-101(1)(a), C.R.S.1973 (1978 Repl.Vol. 8) generally prohibits appellate review of conditions imposed upon probation by a trial court. However, I feel that the majority’s reliance on that section in declining to reach the merits of Smith’s appeal is misplaced. Smith does not seek review of the 60-day county jail term imposed. Rather, he seeks review of the trial court’s denial of his statutory right to good time credit pursuant to § 17-26-109, C.R.S.1973 (1978 Repl. Vol. 8). Thus, under his Crim.P. 35(c) motion, review is not of the conditions of probation, but rather is of the legal ramifications of the trial court’s sentence.

In People v. Turner, 644 P.2d 951 (Colo.1982), the court held that “a sentence ... includes an order placing the defendant on probation.” See § 16-11-101, C.R.S.1973 (1978 Repl.Vol. 8). Thus, the suspension of the balance of the two year imprisonment conditioned, inter alia, upon a 60-day county jail term without credit for good time, was the “sentence” received by Smith. In Hemphill v. District Court, 197 Colo. 431, 593 P.2d 972 (1979), our supreme court held that § 17-26-109 prohibits a trial court from imposing a sentence which denies to a defendant the statutory right to a reduction in sentence time for good behavior. And, as the supreme court said in People in Interest of A.F., 192 Colo. 207, 557 P.2d 418 (1976), “the power of a court to impose conditions of probation must be strictly construed from the applicable statutes.”

Here, pursuant to § 16-11-202, C.R.S. 1973 (1978 Repl.Vol. 8), 60 days to be served in the county jail is the maximum commitment allowable as a condition of probation to a sentence imposed for a misdemeanor conviction. Denial of earned good time credit illegally expands upon the maximum time authorized under § 16-11-202 to which a trial court has power to commit a probationer to county jail, and, further, the denial violates § 17-26-109, C.R.S.1973 (1978 Repl.Vol. 8). Thus, the sentence is reviewable under § 16-11-*528101(1)(a). See People v. Cera, 673 P.2d 807 (Colo.App.1983). And, under Crim.P. 35(c)(1). People v. Malacara, 199 Colo. 243, 606 P.2d 1300 (1980); see also People v. Ivery, 44 Colo.App. 511, 615 P.2d 80 (1980).

The rationale underlying the penitentiary good behavior statute is applicable to § 17-26-109, as the two statutes are substantially identical. See § 17-20-104, C.R.S.1973 (1982 Cum.Supp.). The purpose of the statute is to promote good behavior by incarcerated persons. See Alexander v. Wilson, 189 Colo. 321, 540 P.2d 331 (1975). The authority to grant good time credit is vested in the jail keeper so that he may reward and motivate such behavior. See § 17-26-109. This prerogative of the jailer may not be usurped by trial courts.

Therefore, I would remand to the trial court with instructions to vacate its order denying Smith statutory right to good time credit pursuant to § 17-26-109.