Opinion · Colorado Court Opinions
SWANSON v. PEOPLE, 154 Colo. 340 (1964)
RICHARD LeROY SWANSON & DONALD P. MILLER v. PEOPLE OF THESTATE OF COLORADO., 390 P.2d 470 (Colo. 1964)
- Type
- Opinion
- Court
- Colorado Court Opinions
- Jurisdiction
- Colorado
- Date
- 1964-03-23
- Topic
- general
SWANSON v. PEOPLE, 154 Colo. 340 (1964) (390 P.2d 470) RICHARD LeROY SWANSON AND DONALD P. MILLER v. THE PEOPLE OF THESTATE OF COLORADO. No. 20,797.Supreme Court of Colorado.
Citator
UpLaw has not yet analyzed SWANSON v. PEOPLE, 154 Colo. 340 (1964). The absence of a flag is not a finding that it is good law.
SWANSON v. PEOPLE,154 Colo. 340(1964)
(390 P.2d 470)
RICHARD LeROY SWANSON AND DONALD P. MILLER v. THE PEOPLE OF THE
STATE OF COLORADO.
No. 20,797.
Supreme Court of Colorado.
Decided March 23, 1964.
2.Rules — Constitutional Rights — Grounds For Relief — Reviewby Writ of Error. In order for an alleged violation of a prisoner's constitutional rights to be a ground for relief under Rule 35 (b) Colo. R. Crim. P., it must be of a sort not effectively subject to review by writ of error; hence where right claimed was of the type effectively subject to review by writ of error, relief is not available under Rule 35 (b).
3.Conviction — Uncorroborated Testimony of Accomplice — Testimonyof Complaining Witness. The long-standing rule in Colorado is that a defendant in a criminal proceeding may be convicted on the uncorroborated testimony of an accomplice; hence a conviction based upon the uncorroborated testimony of the complaining witness is amply sufficient to support a conviction.Page 341
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, MR. JOHN P. MOORE, Assistant, for defendant in error.
En Banc.
Three years later the defendants, still in custody, filed a motion to vacate judgment and sentence under Rule 35 (b), Colo. R. Crim. P. The trial court summarily denied this motion, declining to cause notice of the filing of the motion to be served on the prosecuting attorney and making no findings or conclusions with respect thereto.
In the motion to vacate sentence the defendants alleged that the trial court "lacked jurisdiction" to sentence them for the reason that the trial judge, sitting as the trier of the facts, convicted them upon the uncorroborated testimony of their minor victim and that in being thus convicted the defendants were denied "due process."
In our view the position of the defendants is untenable,Page 342not just from a substantive standpoint but from a procedural standpoint as well:
Rule 35 (b) provides, in part, as follows:
"A prisoner in custody under sentence and claiming a right to be released on the ground that such sentence was imposed in violation of the constitution or laws of Colorado or of the United States, or that the court imposing the sentence was without jurisdiction to do so, . . . may file a motion at any time in the court which imposed such sentence to vacate, set aside or correct it.Unless the motion and the files and record of thecase show to the satisfaction of the court that the prisoner isnot entitled to relief, the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or . . . that there was a violation of the prisoner's constitutional rightsofa sort not effectively subject to review on writ of erroreither because the violation itself operated to prevent review or because the violation through no fault of the prisoner did not appear upon the record so as to be subject to review, the court shall vacate and set aside the judgment . . . ." (Emphasis supplied.)
[1] The suggestion that the trial court "lacks jurisdiction" to sentence the defendants is patently without merit. The trial court clearly had jurisdiction over both the subject matter, i.e. the crime denounced by C.R.S. '53, 40-2-31, as well as over the person of each defendant.
Further, the contention that the defendants were denied "due process" because the trial court convicted them on the uncorroborated testimony of the victim is a matter which under the circumstances cannot be successfully raised by a motion under Rule 35 (b).
[2] In order for an alleged "violation of the prisoner's constitutional rights" to be a ground for relief under Rule 35 (b) it must be "of a sort not effectively subjectPage 343to review on writ of error." Here the alleged violation of the defendants' constitutional rights most obviouslywasof a type effectively subject to review on writ of error, and hence the matter may not be raised in the manner here sought.
[3] In disposing of this controversy on a procedural ground, we would not want to be understood as indicating that the defendants' position is otherwise valid. The long-standing rule in Colorado is that a defendant in a criminal proceeding may be convicted on the uncorroborated testimony of an accomplice. SeeRoberts v. People,11 Colo. 213,17 P. 637, andBurns v. People,148 Colo. 245,365 P.2d 698. In the instant case we are not even confronted with a conviction based on the uncorroborated testimony of an accomplice, but a conviction based on the corroborated testimony of the victim! In short, in our view the evidence is amply sufficient to support the judgment.
The judgment is affirmed.
MR. JUSTICE MOORE not participating.Page 344