dissenting.
Because I do not agree that the defendant made reasonable efforts to secure an expeditious ruling on his request for sentence reduction, I respectively dissent.
I, of course, agree that delaying the resolution of a 35(b) motion to give the defendant an opportunity to build a positive record is never reasonable and therefore that the district court failed to rule within a reasonable time in this case. I disagree, however, with the majority's finding of reasonable efforts by the defendant to secure an expeditious ruling, both because I believe the majority misreads the defendant's motion and because I believe that moving the court to rule expeditiously (as it is obliged to do anyway) or, in the alternative, to delay in order to give the defendant a chance to build a positive record (even if these had actually been the choices offered by the defendant's motion), would nevertheless not be adequate.
Rather than requesting immediate review of his sentence or a delay to build a favorable record, as the majority believes, the defendant's motion actually prays for the court to grant him either a reduction of his current sentence or a delay to build a favorable record. The defendant never requests, even in the alternative, an expeditious ruling on his motion. He moves the court to rule expeditiously only if it is willing to grant a sentence reduction without further support; but if it is unwilling to reduce his sentence immediately, the motion requests a delay for the defendant to build a favorable record. The import of the motion is clearly to seek delay rather than accept denial of the motion in a timely manner.
In any event, however, I do not believe the defendant's conduct, even if his motion were as the majority understands it to be, could constitute the reasonable efforts to secure the expeditious resolution of a request for sentence reduction required by our prior holdings. As long as thirty-five years ago we acknowledged a state constitutional mandate to the effect that onee finality of sentence is achieved, any further relief from that sentence must be obtained through the executive department by way of commutation, and not through the judiciary. See People v. Herrera, 183 Colo. 155, 516 P.2d 626 (1973); see also People v. Fuqua, 764 P.2d 56 (Colo.1988). Although we there held that finality of sentence was achieved according to the 120-day limit of Crim. P. 85(b), we later determined, in Fuqua, 764 P.2d at 61, that expeditious resolution of a 85(b) motion would still accord due deference to the principle of finality. Similarly, because a defendant cannot absolutely control court action on even a timely-filed motion, we further held that finality of sentence, which would bar modification by the judiciary, could nevertheless not be achieved as long as the defendant made reasonable efforts to secure an expeditious ruling. Id.
Although we made clear at least by the time of Mamula v. People, 847 P.2d 1135, 1138 (Colo.1993), that the time to build a record of conduct with the department of corrections is not what Crim. P. 85(b) contemplates as a reasonable time, we continue *116to find ourselves (as the record in this case demonstrates) faced with an ongoing practice of delay precisely for this purpose. Far from making efforts to secure compliance by a recalcitrant court with its duty to rule expeditiously, a request, even in the alternative, for delay to build a record of cooperation and rehabilitation is a clear invitation for the court to violate that duty. The majority holding to the contrary not only offers tacit approval of this practice but, in fact, suggests a formula for cireumventing the limitation on judicial power embodied in the executive's exclusive constitutional authority to commute sentences.
I therefore respectfully dissent.
I am authorized to state that Justice EID joins in this dissent.