Castro v. District Court of the Tenth Judicial District

DUBOFSKY, Justice. The petitioner Bernard C. Castro, Jr. brought this original proceeding under C.A.R. 21 seeking relief in the nature of mandamus. We issued a rule to show cause why the respondent district court of the Tenth Judicial District had not exceeded its jurisdiction in ordering that the petitioner’s sentence to county jail exclude credit for time spent in pre-sentence confinement. Because we conclude that it was within the respondent court’s discretion whether to credit time spent in pre-sentence confinement when the petitioner was sentenced to county jail, we discharge the rule. Castro was arrested on November 20, 1981, and held in the Pueblo county jail until he was charged by information with second degree murder on December 3, 1981. He did not post bond, and on July 16, 1982, a jury found him guilty of criminally negligent homicide, a class 1 misdemeanor, under section 18-3-105, C.R.S.1973 (1978 Repl. Vol. 8). At the sentencing hearing on August 30, 1982, counsel for Castro requested that the mittimus reflect 284 days of pre-sentence confinement. The respondent court considered the background of the defendant and the facts and circumstances of the offense and imposed the maximum sentence of 24 months for a class 1 misdemean- or, ordered the defendant to serve the sentence in the Pueblo county jail, and directed that the defendant not be given credit for the time from November 20, 1981 until August 30,1982 spent in pre-sentence incarceration. The judge indicated that had he sentenced Castro to a correctional facility under the supervision of the Department of Corrections he would have made a finding of the amount of pre-sentence confinement to which Castro was entitled. However, he noted that there is no statutory requirement that a person sentenced to a county jail be credited with pre-sentence confinement and no requirement that the sheriff deduct the time spent in pre-sentence confinement from an inmate’s sentence. Castro contends that the respondent court exceeded its jurisdiction by refusing to follow section 16-11-306, C.R.S.1973 (1978 Repl.Yol. 8) (1982 Supp.) requiring the sentencing court to make a finding of the amount of pre-sentence confinement to which he was entitled and including the finding in the mittimus directing the sheriff [1280] to convey him to the county jail.1 We disagree. Section 16-11-306 does not mandate a sentencing judge to credit a defendant with time spent in pre-sentence confinement when the sentence is to a county jail. Section 16-11-306 provides: A person who is confined prior to the imposition of sentence is entitled to credit against the term of his sentence for the entire period of such confinement. At the time of sentencing, the court shall make a finding of the amount of presen-tence confinement to which the offender is entitled and shall include such finding in the mittimus. Such period of confinement shall be deducted from the sentence by the department of corrections. This provision appears in part 3 of Article 11 of Chapter 16 concerning sentences to imprisonment in a state correctional facility under the supervision of the Department of Corrections.2 Although section 16-11-306 does not specifically limit its application to sentences to a correctional facility, the language requiring the Department of Corrections to deduct the pre-sentence confinement from the sentence implies that credit for pre-sentence confinement is mandated only when the sentence is to be served in a state correctional facility. Pueblo county jail is not a correctional facility under the supervision of the Department of Corrections. Sentences to the Pueblo county jail are governed by the requirements in section 17-26-101, et seq., C.R.S.1973 (1978 Repl. Vol. 8) (1982 Supp.). There is nothing in section 17-26-101, et seq. mandating the deduction of the period of pre-sentence confinement from a sentence to a county jail. Castro, age 19 at the time of his sentence, was eligible for a sentence to a state correctional facility under section 16-11-301(2), C.R.S.1973 (1978 Repl.Vol. 8) (1982 Supp.) which provides that a defendant convicted of a crime which may be punished by imprisonment in a county jail may be sentenced to a correctional facility other than the penitentiary at Canon City if, at the • time of sentencing, the defendant is between the ages of 16 and 21 and “if, in the opinion of the court, rehabilitation of the person convicted can best be obtained by such a sentence, and if it also appears to the court that the best interests of the person and of the public and the ends of justice would thereby be served.” The respondent court had discretion to sentence Castro to the Pueblo county jail. The court considered Castro’s pre-sentence confinement and determined not to give him credit for it under section 16-11-306 because Castro’s sentence was to a county jail. The court acted within its discretion in determining that it was not bound by the mandatory credit for pre-sentence confinement in section 16-11-306.3 Rule discharged. [1281] QUINN, J., dissents. LOHR, J., does not participate. Footnotes [1] Castro does not contend that the court’s failure to credit his sentence to county jail with time spent in pre-sentence confinement violated his constitutional guarantee of equal protection of the laws or that his sentence exceeded the maximum allowed for conviction of a class 1 misdemeanor under section 18-1-106, C.R.S. 1973 (1978 Repl.Vol. 8) (1982 Supp.). See People v. Dennis, 649 P.2d 321 (Colo.1982); People v. White, 623 P.2d 868 (1981); Godbold v. District Court, 623 P.2d 862 (Colo.1981); Perea v. District Court, 199 Colo. 27, 604 P.2d 25 (1979); People v. Martinez, 192 Colo. 388, 559 P.2d 228 (1977); People v. Reed, 190 Colo. 517, 549 P.2d 1086 (1976); People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973); Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972); People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971); People v. Mieyr, 176 Colo. 90, 489 P.2d 327 (1971); People v. Puls, 176 Colo. 71, 489 P.2d 323 (1971); People v. Scott, 176 Colo. 86, 489 P.2d 198 (1971); People v. Regan, 176 Colo. 59, 489 P.2d 194 (1971); Maciel v. People, 172 Colo. 8, 469 P.2d 135 (1970). But see Godbold v. Wilson, 518 F.Supp. 1265 (D.Colo.1981); Godbold v. District Court, supra (Quinn, J. dissenting); Perea v. District Court, supra (Dubofsky, J. dissenting). See also section 16-11-302.5, C.R.S.1973 (1978 Repl.Vol. 8) (1982 Supp.). [2] Sub-sections 17-1-102(1) and (2), C.R.S.1973 (1978 Repl.Vol. 8) (1982 Supp.) define “correctional facility” as “any facility under the supervision of the department in which persons are or may be lawfully held in custody as a result of conviction of a crime,” and “department” as “the department of corrections.” [3] We do not rule here that a sentencing court is without discretion to grant credit for pre-sen-tence confinement on a sentence to county jail.