2021 Colorado Code
Title 18 - Criminal Code
Article 1.3 - Sentencing in Criminal Cases
Part 4 - Sentences to Imprisonment
§ 18-1.3-408. Determinate Sentence of Imprisonment Imposed by Court
When a person has been convicted of a felony and a sentence of imprisonment imposed, the court imposing the sentence shall fix a definite term of imprisonment, which shall be not longer than the terms authorized in section 18-1.3-401 ; except that, for persons convicted on or after November 1, 1998, of a sex offense, as defined in section 18-1.3-1003 (5) , the court shall impose an indeterminate sentence as provided in part 10 of this article.
History. Source: L. 2002: Entire article added with relocations, p. 1413, § 2, effective October 1.
This section is similar to former § 16-11-304 as it existed prior to 2002.ANNOTATION
Law reviews. For note, “Correcting an Erroneous Judgment in a Criminal Case”, see 19 Rocky Mt. L. Rev. 295 (1947). For article, “Criminal Prosecutions under the Colorado Securities Act”, see 47 U. Colo. L. Rev. 233 (1976).
Annotator's note. Since § 18-1.3-408 is similar to § 16-11-304 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, repealed § 39-12-1 , C.R.S. 1963, § 39-12-1 , CRS 53, CSA, C. 48, § 545, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Only the general assembly may define crimes and prescribe punishments. People v. Hinchman, 196 Colo. 526 , 589 P.2d 917 (1978), cert. denied, 442 U.S. 941, 99 S. Ct. 2883, 61 L. Ed. 2d 311 (1979).
The sentence is a matter solely within the discretion of the trial judge. Armbeck v. People, 135 Colo. 568 , 313 P.2d 715 (1957).
A trial judge has the authority and the power to impose any sentence that falls within the statutory limitations that have been created by the general assembly as punishment for the particular crime in issue. People v. Jones, 176 Colo. 61 , 489 P.2d 596 (1971).
An erroneous judgment is one rendered contrary to law. People ex rel. Best v. District Court, 115 Colo. 240 , 171 P.2d 774 (1946).
When a district court has jurisdiction of the person and the subject matter -- and that jurisdiction is not challenged -- its judgment is not void; it is at most erroneous. Stilley v. Tinsley, 153 Colo. 66 , 385 P.2d 677 (1963).
Excessive sentence invalid only as to excess. Where a judgment is merely excessive, and the court which pronounces it is one of general jurisdiction, it is not void ab initio because of the excess, but is good so far as the power of the court extends, and is invalid only as to the excess. Martin v. District Court, 37 Colo. 110 , 86 P. 82, 119 Am. St. R. 262 (1906); Stilley v. Tinsley, 153 Colo. 66 , 385 P.2d 677 (1963).
And court retains jurisdiction to correct erroneous judgment. Where a court has jurisdiction of the person and subject matter and has entered an erroneous judgment, it retains jurisdiction to correct, modify, and alter it in accordance with the statute involved, notwithstanding the expiration of the term at which the judgment was pronounced. People ex rel. Best v. District Court, 115 Colo. 240 , 171 P.2d 774 (1946).
If an illegal sentence has been pronounced, the court has power to substitute a legal sentence, and this power is not impaired by the expiration of the term of court during which the judgment was pronounced. Stilley v. Tinsley, 153 Colo. 66 , 385 P.2d 677 (1963).
Judgment may be corrected by appeal. An excessive sentence is at most voidable, and may be corrected on appeal. Martin v. District Court, 37 Colo. 110 , 86 P. 82, 119 Am. St. R. 262 (1906).
An erroneous judgment may be corrected by appeal or other like proceeding in an appellate court. People ex rel. Best v. District Court, 115 Colo. 240 , 171 P.2d 774 (1946).
Habeas corpus does not lie to obtain release from an erroneous sentence, but does lie to afford relief from a void sentence. Stilley v. Tinsley, 153 Colo. 66 , 385 P.2d 677 (1963).
Petition for habeas corpus treated as one for entry of proper sentence. A defendant seeking habeas corpus without success could, if defendant so elected, have his petition for habeas corpus treated as a petition for entry of a proper sentence. Stilley v. Tinsley, 153 Colo. 66 , 385 P.2d 677 (1963).
No violation of equal protection or double jeopardy where sentence within statutory limits. People v. Mieyr, 176 Colo. 90 , 489 P.2d 327 (1971).
Applied in People v. Flowers, 644 P.2d 916 (Colo. App. 1982); People v. Chambers, 749 P.2d 984 (Colo. App. 1987).