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819 P.2d 541

15 BriefTimesRptr. 449

People v. Holmes

Colorado Court of Appeals

Decided April 11, 1991

Colorado Court of Appeals · decided 1991-04-11

Cited by 2 later decisions — most recently October 1998

1 district · 1 state decisions

Relies on Turman v. Buckallew

Good law ✅— No negative treatment on recordhow we know

Decided 1991-04-11

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¶1Opinion by

Judge SMITH.

¶2Defendant, Tommy Holmes, appeals an order denying his motion for post-conviction relief brought pursuant to Crim.P. 35(c). We dismiss the appeal.

¶3In 1980, defendant, pursuant to a plea agreement, entered a plea of guilty to the felony of attempted robbery in Denver District Court (No. 79CR1580). Certain other felony counts were thereupon dismissed pursuant to that agreement and defendant was sentenced to the Department of Corrections for two years.

¶4In 1987, defendant was charged and was ultimately convicted of robbery and three counts relating to habitual criminal. He was sentenced to life imprisonment. During the habitual criminal phase of the 1987 trial, he collaterally attacked his 1980 Denver conviction on the grounds that the advisement given him prior to his entry of a plea of guilty was constitutionally insufficient. He unsuccessfully argued in the trial court, and subsequently on appeal to this court, that he had not been advised of his ineligibility for probation prior to entry of the plea.

¶5This court in People v. Holmes, (Colo. App. No. 87CA1893, Dee. 13, 1990) (not selected for official publication) affirmed the 1987 conviction and also the habitual criminal sentence, holding, inter alia, that Holmes’ plea of guilty in the 1980 proceeding had been properly received after an adequate advisement and, thus, that the conviction based thereon was sufficient to provide support for the habitual criminal disposition.

¶6Subsequently, defendant, acting pro se, filed a motion under Crim.P. 35(c) again challenging the propriety of the 1980 conviction. In this case, he argues again that the advisement given in that providen-cy hearing was insufficient. He now asserts that he was not advised by the court concerning the mens rea of attempted robbery and that the charging document was insufficient because it did not define rob*542bery or describe the necessary mens rea. The trial court here rejected these arguments and denied defendant’s motion on its merits.

¶7We do not reach the substantive issues raised by defendant, but rather dismiss this appeal on the basis that, in the absence of special circumstances, the courts need not entertain successive requests for the same relief based on the same or similar allegations on behalf of the same prisoner. Turman v. Buckallew, 784 P.2d 774 (Colo.1989).

¶8The arguments advanced here were available to Holmes at the time of his prior attack on this 1980 plea of guilty, and we have neither been presented with, nor do we perceive, any special circumstances which justify a second attack on the same guilty plea which has been previously reviewed and sustained.

¶9Appeal dismissed.

JONES and RULAND, JJ., concur.
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