dissenting.
I respectfully dissent.
In my view our supreme court’s decision in Castro v. District Court, 656 P.2d 1283 (Colo.1982) does not require reversal under the facts presented here. In Castro, the court held that § 16-11-306, C.R.S. (1986 Repl.Vol. 8A) did not require that a defendant convicted for a misdemeanor offense be given credit for pre-sentence confinement on a county jail sentence. On the other hand, the court expressly declined to rule that a sentencing court was prohibited from allowing pre-sentence confinement credit against county jail sentences in the exercise of its discretion.
Here, defendant was convicted of one misdemeanor and one felony offense, and the court imposed consecutive sentences on the two convictions. Defendant does not claim on appeal that the court erred or abused its discretion either in imposing consecutive sentences for the two offenses, or in its determination of the place of his confinement.
If a county jail sentence and a state correctional sentence are imposed to run consecutively, the county jail sentence must be served in the county jail rather than the state correctional facility. People v. Green, 734 P.2d 616 (Colo.1987); People v. Battle, 742 P.2d 952 (Colo.App.1987). And, if consecutive sentences are imposed, credit for pre-sentence confinement need only be granted on one of the sentences to assure compliance with § 16-11-306. Schubert v. People, 698 P.2d 788 (Colo.1985). A defendant is not entitled to duplicative credit for pre-sentence confinement. People v. Etts, 725 P.2d 73 (Colo.App.1986).
The supreme court’s decision in Castro, supra, interpreted § 16-11-306 so as to mandate its application “only when the sentence is to be served in a state correctional facility.” (emphasis added) In my view that language requires credit to be given against a sentence to a state correctional facility only if a state correctional sentence is the sole sentence imposed. The trial court may exercise its discretion in granting full credit for pre-sentence confinement against either the county jail sentence or the state correctional facility sentence if such sentences are consecutively imposed.
Moreover, even if the trial court erred in granting the credit against the county jail sentence rather than the state correctional sentence, the error was harmless and does not require reversal. See Crim.P. 52(a). Defendant has not demonstrated that the asserted error affected any substantial right, or that he was prejudiced by the court’s action. He was granted the full amount of pre-sentence confinement credit to which he might be entitled under the statute, and has received the benefit of that award. He should not be granted the windfall of duplicative credit under these circumstances.
I would affirm the order denying defendant’s Crim.P. 35 motion.