People v. Mack

¶1The defendant, Samuel J. Mack, appeals from the denial of his Crim.P. 35(c)(2) motion. We affirm in part, reverse in part, and remand with directions.

¶2The defendant was arrested on October 31,1976. He was later charged in an information with one count of first-degree sexual assault, § 18-3-402, 8 C.R.S. (1978), and two counts of menacing, § 18-3-206, 8 C.R.S. (1978). He was convicted by a jury on March 28, 1979, on all counts. The defendant was sentenced to the Colorado State Penitentiary by the Pueblo District Court on May 4, 1979, for concurrent terms of twenty to twenty-eight years on the sexual assault count and for two terms of three to five years on the menacing counts. The defendant has remained incarcerated from the time of his arrest. The Sheriff of Pueblo County physically delivered the defendant to the penitentiary on May 7, 1979.

¶3The defendant contends he is entitled to credit agdinst his sentence for the three days he spent in the Pueblo County jail before he was transferred to the penitentiary. Section 17-20-118, 8 C.R.S. (1983 Supp.), directs that a prisoner be given credit for the time that he spends at the state penitentiary. Section 16-11-308, 8 C.R.S. (1983 Supp.), provides that at the time a defendant is sentenced to the state penitentiary he is deemed to be in the custody of the Executive Director of the Department of Corrections.1 Under the statutory scheme the defendant’s sentence commenced on the date of sentencing, May 4, 1979, even though he was not received at the penitentiary until May 7, 1979. People v. Lucero, 654 P.2d 835 (Colo.1982). Thus, the defendant is entitled to credit against the sentence for the three days that he spent in the Pueblo County jail before he was transferred to the Colorado State Penitentiary.2

¶4Accordingly, we affirm in part, reverse in part, and remand with directions to credit the defendant with three days incarceration in the penitentiary in accordance with this opinion.