Alternative Sentencing In Criminal Cases —C.R.S. 18-1.3-101 et seq.
Alternative Sentencing In Criminal Cases —C.R.S. 18-1.3-101 et seq.| Home | Abstract | Contents | Authors and Site Map | Tables | Index | Bibliography | Comments? | EJF Newsletters | Get EJF Newsletter |
| Chapter 16 — Applicable Colorado Laws |
| Next — Assaults |
| Back — Home detention programs |
18-1.3-101. Deferred prosecution.
18-1.3-102. Deferred sentencing of defendant.
18-1.3-103. Deferred sentencing - drug offenders - legislative declaration - demonstration program - repeal. (Repealed)
18-1.3-104 . Alternatives in imposition of sentence.
18-1.3-105. Authority of sentencing courts to utilize home detention programs.
18-1.3-106. County jail sentencing alternatives - work, educational, and medical release - home detention - day reporting.
(1) Except as otherwise provided in section 18-6-801 (4), in any case, the court may, prior to trial or entry of a plea of guilty and with the consent of the defendant and the prosecution, order the prosecution of the offense to be deferred for a period not to exceed two years; except that the period of deferred prosecution may be extended for an additional time up to one hundred eighty days if the failure to pay the amounts specified in subsection (2) of this section is the sole condition of supervision which has not been fulfilled, because of inability to pay, and the defendant has shown a future ability to pay. During that time, the court may place the defendant under the supervision of the probation department and may require the defendant to undergo counseling or treatment for the defendant's mental condition, or for alcohol or drug abuse, or for both such conditions.
(2) Upon the defendant's satisfactory completion of and discharge from supervision, the charge against the defendant shall be dismissed with prejudice. If the conditions of supervision are violated, the defendant shall be tried for the offense for which he or she is charged. The violation of conditions of supervision shall be determined by a hearing before the court which granted the deferred prosecution. The burden in such hearing shall be upon the district attorney by a preponderance of the evidence to show that a violation has in fact occurred. However, if the alleged violation is the failure to pay court-ordered compensation to appointed counsel, probation fees, court costs, restitution, or reparations, evidence of the failure to pay shall constitute prima facie evidence of a violation. The presiding judge at the hearing may temper the rules of evidence in the exercise of sound judicial discretion.
(3) Upon consenting to a deferred prosecution as provided in this section, the defendant shall execute a written waiver of his or her right to a speedy trial. Consent to a deferred prosecution under this section shall not be construed as an admission of guilt, nor shall such consent be admitted in evidence in a trial for the offense for which he or she is charged.
Source: L. 2002: Entire article added with relocations, p. 1365, § 2, effective October 1.
Editor's note: This section is similar to former § 16-7-401 as it existed prior to 2002.
Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982).
Annotator's note. Since § 18-1.3-101 is similar to § 16-7-401 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.
The obvious legislative intent in passing the deferred prosecution statute was to delay prosecution for a probationary period, which, if completed satisfactorily, would then require that the charge against a defendant be dismissed with prejudice by the trial court. People v. Ybarra, 190 Colo. 409, 547 P.2d 925 (1976).
Defendant alone benefits. In those cases where the trial court approves a defendant's application for deferred prosecution, it is the defendant alone who benefits by this procedure which may result in the dismissal of charges against him. People v. Ybarra, 190 Colo. 409, 547 P.2d 925 (1976).
And the period of any delay in the prosecution of a case is obviously at the instance of the defendant. People v. Ybarra, 190 Colo. 409, 547 P.2d 925 (1976).
Under § 18-1-405(6)(f) of the speedy trial statute, it specifically states that the period of any delay in the prosecution of a case "caused at the instance of the defendant" shall be excluded in computing the time within which the defendant shall be brought to trial. People v. Ybarra, 190 Colo. 409, 547 P.2d 925 (1976).
Thus failure to execute waiver does not inure to defendant's benefit. The fact that the defendant did not execute a written waiver of her right to a speedy trial as required in the deferred prosecution statute and as she agreed to do in open court does not inure to her benefit. People v. Ybarra, 190 Colo. 409, 547 P.2d 925 (1976).
The prosecutor's consent is a matter of prosecutorial discretion just as is the choice of several possible charges to press or the decision to move for the dismissal of a criminal charge. People v. District Court, 186 Colo. 335, 527 P.2d 50 (1974).
Which is limited by pragmatic factors. A prosecutor's discretion in charging, deferring, or requesting dismissal is limited by pragmatic factors, but not by judicial intervention. People v. District Court, 186 Colo. 335, 527 P.2d 50 (1974).
District court cannot require prosecutor to give reasons for refusing to consent. Because of the doctrine of separation of powers and because the district attorney is a part of the executive branch, the district court can no more require the district attorney to give his reasons for refusing to consent to a deferred prosecution than a court can require a Colorado governor to give his reasons for failing to grant a pardon. People v. District Court, 186 Colo. 335, 527 P.2d 50 (1974).
(1) In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for a period not to exceed four years from the date of entry of a plea to a felony or two years from the date of entry of a plea to a misdemeanor, or petty offense, or traffic offense for the purpose of entering judgment and sentence upon such plea of guilty; except that such period may be extended for an additional time up to one hundred eighty days if the failure to pay restitution is the sole condition of supervision which has not been fulfilled, because of inability to pay, and the defendant has shown a future ability to pay. During such time, the court may place the defendant under the supervision of the probation department.
(2) Prior to entry of a plea of guilty to be followed by deferred judgment and sentence, the district attorney, in the course of plea discussion as provided in sections 16-7-301 and 16-7-302, C.R.S., is authorized to enter into a written stipulation, to be signed by the defendant, the defendant's attorney of record, and the district attorney, under which the defendant is obligated to adhere to such stipulation. The conditions imposed in the stipulation shall be similar in all respects to conditions permitted as part of probation. Any person convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3 (1), shall stipulate to the conditions specified in section 18-1.3-204 (2) (b). In addition, the stipulation may require the defendant to perform community or charitable work service projects or make donations thereto. Upon full compliance with such conditions by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice. Such stipulation shall specifically provide that, upon a breach by the defendant of any condition regulating the conduct of the defendant, the court shall enter judgment and impose sentence upon such guilty plea. When, as a condition of the deferred sentence, the court orders the defendant to make restitution, evidence of failure to pay the said restitution shall constitute prima facie evidence of a violation. Whether a breach of condition has occurred shall be determined by the court without a jury upon application of the district attorney or a probation officer and upon notice of hearing thereon of not less than five days to the defendant or the defendant's attorney of record. Application for entry of judgment and imposition of sentence may be made by the district attorney or a probation officer at any time within the term of the deferred judgment or within thirty days thereafter. The burden of proof at such hearing shall be by a preponderance of the evidence, and the procedural safeguards required in a revocation of probation hearing shall apply.
(3) When a defendant signs a stipulation by which it is provided that judgment and sentence shall be deferred for a time certain, he or she thereby waives all rights to a speedy trial, as provided in section 18-1-405.
(4) A warrant for the arrest of any defendant for breach of a condition of a deferred sentence may be issued by any judge of a court of record upon the report of a probation officer, or upon the verified complaint of any person, establishing to the satisfaction of the judge probable cause to believe that a condition of the deferred sentence has been violated and that the arrest of the defendant is reasonably necessary. The warrant may be executed by any probation officer or by a peace officer authorized to execute warrants in the county in which the defendant is found.
Source: L. 2002: Entire article added with relocations, p. 1366, § 2, effective October 1.
Editor's note: This section is similar to former § 16-7-403 as it existed prior to 2002.
A deferred judgment is created and authorized by statute and a trial court lacks authority to impose a deferred judgment outside of the statute's limitations. The trial court exceeded its jurisdiction by extending defendant's deferred judgment beyond the statutory limits. People v. Carbajal, 198 P.3d 102 (Colo. 2008).
Once the court imposes a deferred judgment, the four-year time period starts the day defendant entered his or her plea. Judgment and sentence must be entered within four years unless the deferred judgment is revoked or extended for restitution. The statute divests the court of its authority to hear revocation petitions filed more than 30 days after the deferred judgment expires. People v. Carbajal, 198 P.3d 102 (Colo. 2008).
Because the court lacks the authority to enforce an agreed-upon extension of the deferred judgment beyond the statutory time limitations, it also lacks authority to enforce such an extension framed as a stipulation to new supervision requirements. People v. Carbajal, 198 P.3d 102 (Colo. 2008).
Source: L. 2002: Entire article added with relocations, p. 1367, § 2, effective October 1.
Editor's note: (1) This section was similar to former § 16-7-403.7 as it existed prior to 2002. (2) Subsection (6) provided for the repeal of this section, effective July 1, 2006. (See L. 2002, p. 1367.)
(1) Within the limitations of the applicable statute pertaining to sentencing and subject to the provisions of this title, the trial court has the following alternatives in entering judgment imposing a sentence:
(a) The defendant may be granted probation unless any provision of law makes him or her ineligible for probation. The granting or denial of probation and the conditions of probation including the length of probation shall not be subject to appellate review unless probation is granted contrary to the provisions of this title.
(b) Subject to the provisions of section 18-1.3-401, in class 2, class 3, class 4, class 5, and class 6 felonies, the defendant may be sentenced to imprisonment for a definite period of time.
(I) Except as otherwise provided by subparagraph (II) of this paragraph (b.5), any defendant who, in the determination of the court, is a candidate for an alternative sentencing option and who would otherwise be sentenced to imprisonment pursuant to paragraph (b) of this subsection (1) may, as an alternative, be sentenced to a specialized restitution and community service program pursuant to section 18-1.3-302 if such defendant is determined eligible and is accepted into such program.
(A) The court shall consider and may sentence any defendant who is a nonviolent offender as defined in sub-subparagraph (B) of this subparagraph (II) pursuant to subsection (2) of this section.
(B) As used in this section, "nonviolent offender" means a person convicted of a felony other than a crime of violence as defined in section 18-1.3-406 (2), one of the felonies set forth in section 18-3-104, 18-4-203, 18-4-301, or 18-4-401 (2) (c), (2) (d), or (5), or a felony offense committed against a child as set forth in articles 3, 6, and 7 of this title, and who is not subject to the provisions of section 18-1.3-801.
(c) The defendant shall be sentenced to death in those cases in which a death sentence is required under section 18-1.3-1201, 18-1.3-1302, or 18-1.4-102.
(d) The defendant may be sentenced to the payment of a fine or to a term of imprisonment or to both a term of imprisonment and the payment of a fine; except that a person who has been twice convicted of a felony under the laws of this state, any other state, or the United States prior to the conviction for which he or she is being sentenced is not eligible to receive a fine in lieu of imprisonment. No fine shall be imposed for conviction of a felony except as provided in sections 18-1.3-401 and 25-15-310, articles 22 to 29 of title 39, or article 3 of title 42, C.R.S.
(e) The defendant may be sentenced to comply with any other court order authorized by law.
(f) The defendant may be sentenced to payment of costs.
(g) The defendant may be sentenced pursuant to part 4 or 5 of this article.
(I) If the defendant is eligible pursuant to section 18-1.3-407.5 or section 19-2-517 (3), C.R.S., the defendant may be sentenced to the youthful offender system in accordance with section 18-1.3-407.
(i) Notwithstanding any provision of this subsection (1) to the contrary, the court shall sentence any person convicted of a sex offense, as defined in section 18-1.3-1003 (5), committed on or after November 1, 1998, pursuant to the provisions of part 10 of this article.
(a) The sentencing court shall consider the following factors in sentencing nonviolent offenders:
(I) The nature and character of the offense;
(II) The character and record of the nonviolent offender, including whether the offender is a first-time offender;
(III) The offender's employment history;
(IV) The potential rehabilitative value of the sentencing alternatives available to the court;
(V) Any potential impact on the safety of the victim, the victim's family, and the general public based upon sentencing alternatives available to the court; and
(VI) The offender's ability to pay restitution to the victim or the victim's family based upon the sentencing alternatives available to the court.
(b) A nonviolent offender may be granted probation pursuant to paragraph (a) of subsection (1) of this section and, as a condition of probation, be required to participate in an intensive supervision program pursuant to section 18-1.3-208.
(c) The court shall consider and may sentence a nonviolent offender to any one or any combination of the sentences described in this paragraph (c) if, upon consideration of the factors described in paragraph (a) of this subsection (2), the court does not grant probation pursuant to paragraph (b) of this subsection (2) or does not sentence the offender to the department of corrections as provided under paragraph (d) of this subsection (2):
(I) A community corrections program pursuant to section 18-1.3-301;
(II) A home detention program pursuant to section 18-1.3-105; or
(III) A specialized restitution and community service program pursuant to section 18-1.3-302.
(d) Nothing in this subsection (2) shall be construed as prohibiting a court from exercising its discretion in sentencing a nonviolent offender to the department of corrections based upon, but not limited to, any one or more factors described in paragraph (a) of this subsection (2).
(a) In determining the appropriate sentencing alternative for a defendant who has been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), the sentencing court shall consider the defendant's previous criminal and juvenile delinquency records, if any, set forth in the presentence investigation report prepared pursuant to section 16-11-102 (1) (a), C.R.S.
(b) For purposes of this subsection (3), "convicted" means a conviction by a jury or by a court and shall also include a deferred judgment and sentence, a deferred adjudication, an adjudication, and a plea of guilty or nolo contendere.
Source: L. 2002: Entire article added with relocations, p. 1368, § 2, effective October 1. L. 2002, 3rd Ex. Sess.: (1)(c) amended, p. 32, § 24, effective October 1. L. 2003: IP(1), (1)(a), and (1)(b) amended, p. 975, § 12, effective April 17. L. 2004: (1)(h)(II) repealed, p. 243, § 1, effective April 5. L. 2009: (1)(h)(I) amended, (HB 09-1122), ch. 77, p. 280, § 3, effective October 1.
Editor's note: (1) This section is similar to former § 16-11-101 as it existed prior to 2002. (2) Section 6 of chapter 77, Session Laws of Colorado 2009, provides that the act amending subsection (1)(h)(I) applies to offenses committed on or after October 1, 2009. The act was passed without a safety clause and the act, or portions thereof, may not take effect if the people exercise their right to petition under article V, section 1 (3) of the state constitution. For further explanation concerning the effective date, see page ix of this volume.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (1)(c), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session.
Am. Jur.2d. See 21A Am. Jur.2d, Criminal Law, § 791.
C.J.S. See 24 C.J.S., Criminal Law, § 1458.
Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to increased sentence after retrial, see 15 Colo. Law. 1604 (1986). For article, "Criminal Law", which discusses Tenth Circuit decisions dealing with questions of criminal sentencing, see 63 Den. U.L. Rev. 291 (1986).
Annotator's note. Since § 18-1.3-104 is similar to § 16-11-101 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision 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).
It is the general assembly's prerogative to define crimes and prescribe punishments; the courts have no jurisdiction to impose sentences not in accord with the minimum and maximum terms specified by statute. People v. Trujillo, 631 P.2d 146 (Colo. 1981).
Trial court had no authority to order alternate sentence in the event that death penalty statute was later found unconstitutional and, therefore, alternate sentence is illegal and void. People v. Corbett, 713 P.2d 1337 (Colo. App. 1985).
The purpose of this section is to give greater flexibility in sentencing. Nugent v. District Court, 184 Colo. 353, 520 P.2d 592 (1974).
Probation is accorded only to a defendant who seeks it or is willing to accept it as a sentence. People v. Rollins, 771 P.2d 32 (Colo. App. 1989).
The court may impose a fine in lieu of incarceration or probation without the consent of the prosecutor where defendant is convicted of a class 2 felony not involving violence or an assault on a firefighter or a peace officer. People v. Thompson, 897 P.2d 857 (Colo. App. 1994).
Under this section, the trial court may grant probation, if a defendant is eligible for probation, or the trial court may impose a sentence of imprisonment for a definite period of time. Chae v. People, 780 P.2d 481 (Colo. 1989).
Under parole procedures an indeterminate sentence usually results in an earlier release. It cannot be said to be harsh or excessive so as to require the scrutiny of an appellate court. Nugent v. District Court, 184 Colo. 353, 520 P.2d 592 (1974).
Convicted defendant entitled to indeterminate sentence where act effective prior to conviction. A defendant convicted in a criminal proceeding which was not yet final was entitled to indeterminate sentencing in a Crim. P. 35 proceeding since this section and § 16-11-304 requiring such sentencing became effective after the commission of the crime but prior to the date of conviction and sentencing. People v. Griswold, 190 Colo. 136, 543 P.2d 1251 (1975).
Section 18-1-409 entitled defendant to benefit of this section. Defendant, who was sentenced prior to the effective date of the 1973 amendments to this section and § 16-11-304 — which legislation provided for the imposition of indeterminate sentences for class 4 and class 5 felonies — was entitled to the benefit of this legislation under relief sought by § 18-1-409. People v. Thornton, 187 Colo. 202, 529 P.2d 628 (1974).
A defendant who was sentenced to a term with a fixed minimum and fixed maximum for conviction of a class 4 felony was entitled under § 18-1-409 to the benefits of this section and § 16-11-304. People v. Race, 187 Colo. 204, 529 P.2d 629 (1974).
Repeal of subsection (1)(d) after sentence no ground for relief. Where the effective date (July 1, 1979) of the repeal of § 16-11-101 (1)(d) was more than three months after the defendant was sentenced under its provisions, the repeal did not entitle the defendant to relief under § 18-1-410 (1)(f)(I). People v. Steelman, 200 Colo. 177, 613 P.2d 334 (1980).
Supreme court was without power to alter minimum sentence to indeterminate sentence. Where defendant, who was sentenced to a minimum term of three years for the crime of manslaughter, sought a declaration that he was immediately eligible for parole consideration on the ground that this section and § 16-11-304, enacted subsequent to his sentencing, required that a maximum sentence be imposed but eliminated the minimum sentence for the crime of manslaughter, the supreme court held that it did not have the power to alter defendant's minimum sentence to make the sentence indeterminate. People v. Davis, 186 Colo. 186, 526 P.2d 312 (1974).
Duration of period of probation is limited to maximum term of imprisonment specified for the offense in question, and the provision of § 16-11-202 permitting the court to grant probation "for such a period and upon such terms and conditions as it deems best", does not give the court the authority to extend the terms of probation beyond the maximum term of imprisonment. People v. Knaub, 624 P.2d 922 (Colo. App. 1980); People v. Benavidez, 58 P.3d 1142 (Colo. App. 2002).
For the period of probation allowable for offenses within the presumptive ranges established by § 18-1-105, see People v. Flenniken, 749 P.2d 395 (Colo. 1988) and People v. Hunter, 757 P.2d 631 (Colo. 1988).
A trial court may not impose a probationary term that is greater than the longest possible period of incarceration for the underlying misdemeanor. People v. Kennaugh, 80 P.3d 315 (Colo. 2003).
The maximum sentences established in § 18-1-105 for imprisonment periods do not apply to probation periods to which a defendant may be sentenced. People v. Flenniken, 749 P.2d 395 (Colo. 1988).
District court possessed jurisdiction to sentence defendant to a term of probation which did not exceed the maximum term of imprisonment in the aggravated range for the crime committed; the term of probation was not limited to the presumptive range for the crime committed. Hunter v. People, 757 P.2d 631 (Colo. 1988).
Incarceration a possible condition of probation. Incarceration, while a sentencing alternative, is also a possible specific condition of probation. People v. Horton, 628 P.2d 117 (Colo. App. 1980).
Sentencing following revocation of deferred judgment. When a deferred judgment is revoked in a felony case, sentencing to the penitentiary is not mandatory. The type of sentence to be imposed after the revocation of the deferred sentence is a matter within the discretion of the trial court, and a defendant is entitled to a consideration of all statutory sentencing alternatives at the time the deferred sentence is revoked and judgment of conviction is entered against him. Adair v. People, 651 P.2d 389 (Colo. 1982).
Court cannot suspend portion of sentence to alter limits of sentence. The court may not circumvent legislative dictates by first sentencing within legislatively prescribed parameters, and then suspending a portion of the minimum and maximum, for to do so would be an invasion of the general assembly's exclusive province to set 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).
Trial court may not suspend sentence after denying probation. There are no provisions in this article authorizing the suspension of imposition or execution of sentence apart from a concomitant grant of probation, and a trial court may not circumvent the statutory requirements by denying probation and thereafter undertaking to suspend a sentence validly imposed. People v. Patrick, 38 Colo. App. 103, 555 P.2d 182 (1976).
A trial court, having rejected probation, cannot circumvent legislative dictates by sentencing within prescribed parameters, suspending the sentence, and then imposing conditions which are authorized only in connection with probation. People v. District Court, 673 P.2d 991 (Colo. 1983); People v. Flenniken, 749 P.2d 395 (Colo. 1988).
District court had no statutory authority to suspend the sentence of imprisonment and to impose conditions on that suspension. Chae v. People, 780 P.2d 481 (Colo. 1989).
Decision to deny probation is not subject to appellate review where trial court considered all circumstances and available evidence. People v. Godwin, 679 P.2d 1095 (Colo. App. 1983); People v. Graham, 678 P.2d 1043 (Colo. App. 1983), cert. denied, 467 U.S. 1216, 104 S. Ct. 2660, 81 L. Ed.2d 366 (1984); People v. Robinson, 713 P.2d 1333 (Colo. App. 1985); People v. Emery, 812 P.2d 665 (Colo. App. 1990).
Appellate court has jurisdiction to review conditions of probation. The appellate court has jurisdiction under subsection (1)(a) to review the conditions of defendant's probation where the argument is that the conditions of probation are contrary to the provisions of this title. People v. Cera, 673 P.2d 807 (Colo. App. 1983); People v. Brockelman, 916 P.2d 592 (Colo. App. 1995), aff'd on other grounds, 933 P.2d 1315 (Colo. 1997).
However, the appellate court has no jurisdiction under subsection (1)(a) to review the conditions of probation where the argument is that the conditions of probation are contrary to the provisions of title 17. People v. Smith, 681 P.2d 525 (Colo. App. 1983).
When credit for presentence confinement presumed. Credit for presentence confinement must be presumed when the sentence imposed, plus the presentence confinement, does not exceed the maximum possible sentence. People v. Lobato, 192 Colo. 357, 559 P.2d 224 (1977).
Having initially taken into consideration the presentence confinement, it was not necessary for a court in resentencing to again recite what had been expressly stated before — that presentence confinement had been considered by the court. People v. Lobato, 192 Colo. 357, 559 P.2d 224 (1977).
This section defines the sentencing alternatives that are within a court's jurisdiction which do not include the authority to enter orders modifying parole eligibility. People v. Anaya, 894 P.2d 28 (Colo. App. 1994).
The substance of the principles articulated in the American Bar Association Standards Relating to Sentencing Alternatives and Procedures § 3.5, insofar as they are consistent with the stated general purposes of the Colorado code of criminal procedure, may be deemed to be "authorized by law" within the meaning of paragraph (f) of subsection (1) of this section and Crim. P. 32(b). People v. Lewis, 193 Colo. 203, 564 P.2d 111 (1977).
Applied in People v. Sandoval, 36 Colo. App. 403, 541 P.2d 105 (1975); People v. Soper, 628 P.2d 604 (Colo. 1981); People v. Hotopp, 632 P.2d 600 (Colo. 1981); People v. Quintana, 634 P.2d 413 (Colo. 1981); People v. Madonna, 651 P.2d 378 (Colo. 1982); People v. Manley, 707 P.2d 1021 (Colo. App. 1985).
(a) A sentencing judge is authorized to sentence any offender, as defined in subsection (5) of this section, to a home detention program operated pursuant to a contractual agreement with the department of public safety pursuant to this article for all or part of such offender's sentence.
(b) Prior to sentencing any offender directly to a home detention program, the sentencing judge shall consider the following factors:
(I) The safety of victims and witnesses of the offender's criminal acts;
(II) The safety of the public at large;
(III) The seriousness of any offense committed by the offender together with any information relating to the original charge against the offender;
(IV) The offender's prior criminal record; and
(V) The ability of the offender to pay for the costs of home detention and any restitution to victims of his or her criminal acts.
(c) The sentencing judge shall make every reasonable effort to notify the victims of crime that the offender has been sentenced to a home detention program. Such notice shall be sent to the last address in the possession of the court, and the victim of the crime has the duty to keep the court informed of his or her most current address.
(d) An offender who has been convicted of a crime, the underlying factual basis of which was found by the court to include an act of domestic violence, as defined in section 18-6-800.3 (1), shall not be eligible for home detention in the home of the victim pursuant to this article.
(2) Any offender who is directly sentenced to a home detention program pursuant to subsection (1) of this section and fails to carry out the terms and conditions prescribed by the sentencing court in his or her sentence to a home detention program shall be returned to the court and resentenced as soon as possible.
(3) A sentencing judge is authorized to require any offender, as defined in subsection (5) of this section, as a condition of probation, to serve an appropriate period of time extending from ninety days to one year in a home detention program operated directly by the judicial department, or in a home detention program operated pursuant to a contractual agreement with the department of public safety.
(4) The general assembly hereby declares that this section shall be effective July 1, 1990, only in the counties of Boulder, Larimer, and Pueblo in order to facilitate a pilot program in Boulder, Larimer, and Pueblo counties which shall extend from July 1, 1990, until July 1, 1992.
(5) As used in this section, unless the context otherwise requires:
(a) "Home detention" means an alternative correctional sentence or term of probation supervision wherein a defendant convicted of any felony, other than a class 1 or violent felony, is allowed to serve his or her sentence or term of probation, or a portion thereof, within his or her home or other approved residence. Such sentence or term of probation shall require the offender to remain within his or her approved residence at all times except for approved employment, court-ordered activities, and medical needs.
(b) "Offender" means any person who has been convicted of or who has received a deferred sentence for a felony, other than a class 1 or violent felony.
Source: L. 2002: Entire article added with relocations, p. 1371, § 2, effective October 1.
Editor's note: This section is similar to former § 17-27.8-102 as it existed prior to 2002.
(a) Any county may provide a program whereby any person sentenced to the county jail upon conviction for a crime, nonpayment of any fine or forfeiture, or contempt of court may be granted by the court the privilege of leaving the jail during necessary and reasonable hours for any of the following purposes:
(II) Working at his or her employment;
(III) Conducting his or her own business or other self-employed occupation including housekeeping and attending to the needs of the family;
(IV) Attendance at an educational institution;
(b) A court may order a person who would otherwise be sentenced to the county jail upon conviction of a crime to be sentenced directly to an available day reporting program if the court deems such a sentence to be appropriate for the offender.
(1.1) For purposes of this section, "home detention" means an alternative correctional sentence or term of legal supervision wherein a defendant charged or convicted of a misdemeanor, felony, nonpayment of any fine, or contempt of court is allowed to serve his or her sentence or term of supervision, or a portion thereof, within his or her home or other approved residence. Such sentence or term of supervision shall cause the defendant to remain within such defendant's approved residence at all times except for approved employment, court-ordered activities, and medical needs. Supervision of the defendant shall include personal monitoring by an agent or designee of the referring unit of government and monitoring by electronic or global positioning devices that are capable of detecting and reporting the defendant's absence or presence within the approved residence.
(1.3) Before a court may grant a person sentenced to the county jail the privilege of leaving the jail to attend a postsecondary educational institution, the court shall first notify the prosecuting attorney and the postsecondary educational institution of its intention to grant the privilege and requesting their comments thereon. The notice shall include all relevant information pertaining to the person and the crime for which he or she was convicted. Both the prosecuting attorney and the postsecondary institution shall reply to the court in writing within ten days of receipt of the notification or within such other reasonable time in excess of ten days as specified by the court. The postsecondary educational institution's reply shall include a statement of whether or not it will accept the person as a student. Acceptance by a state postsecondary educational institution shall be pursuant to section 23-5-106, C.R.S.
(2) Unless directly sentenced to a day reporting program pursuant to paragraph (b) of subsection (1) of this section or unless such privilege is otherwise expressly granted by the sentencing court, the prisoner shall be confined as sentenced. The prisoner may petition the court for such privilege at the time of sentencing or thereafter and, in the discretion of the court, may renew his or her petition. The court may withdraw the privilege at any time by order entered with or without notice.
(3) The sheriff may endeavor to secure employment for unemployed prisoners under this section. If a prisoner is employed for wages or salary, the sheriff may collect the same or require the prisoner to turn over his or her wages or salary in full when received, and the sheriff shall deposit the same in a trust checking account and shall keep a ledger showing the status of the account of each prisoner.
(4) Every prisoner gainfully employed shall be liable for the cost of his or her board in the jail or the cost of the supervision and administrative services if he or she is home-detained, as fixed by the board of county commissioners. If necessarily absent from jail at mealtime, he or she shall, at his or her request, be furnished with an adequate nourishing lunch to carry to work. The sheriff shall charge his or her account, if he or she has one, for such board. If the prisoner is gainfully self-employed, he or she shall pay the sheriff for such board, in default of which his or her privilege under this section shall be automatically forfeited. If the jail food is furnished directly by the county, the sheriff shall account for and pay over such board payments to the county treasurer. The board of county commissioners may, by resolution, provide that the county furnish or pay for the transportation of prisoners employed under this section to and from the place of employment. The sheriff shall reimburse the county or other disbursing agent for all such expenses incurred in accordance with this section and article 26 of title 17, C.R.S., as soon as adequate funds are available in the prisoner's account and in accordance with paragraph (b) of subsection (5) of this section.
(5) By order of the court, the wages or salaries of employed prisoners shall be disbursed by the sheriff for the following purposes, in the order stated:
(a) Payment of any current child support order;
(b) Payment of any child support arrearage;
(b.3) Payment of any child support debt order;
(c) Payment of any spousal maintenance;
(d) Payment of costs for the crime victim compensation fund, pursuant to section 24-4.1-119, C.R.S.;
(e) Payment of surcharges for the victims and witnesses assistance and law enforcement fund, pursuant to section 24-4.2-104, C.R.S.;
(g) Payment of a time payment fee;
(i) Payment of any other fines, fees, or surcharges;
(j) Payment of the board of the prisoner;
(k) Payment of the supervision and administrative services provided to the prisoner during his or her home detention;
(l) Payment of necessary travel expense to and from work and other incidental expenses of the prisoner;
(m) Payment, either in full or ratably, of the prisoner's obligations acknowledged by him or her in writing or which have been reduced to judgment; and
(n) The balance, if any, to the prisoner upon his or her discharge.
(6) The court may by order authorize the sheriff to whom the prisoner is committed to arrange with another sheriff for the employment or home detention of the prisoner in the other's county and, while so employed or so detained, for the prisoner to be in the other's custody but in other respects to be and continue subject to the commitment.
(7) If the prisoner was convicted in a court in another county, the court of record having criminal jurisdiction may, at the request or with the concurrence of the committing court, make all determinations and orders under this section which might otherwise be made by the sentencing court after the prisoner is received at the jail.
(8) The board of county commissioners may, by resolution, direct that functions of the sheriff under either subsection (3) or (5) of this section, or both, be performed by the county department of social services; or, if the board of county commissioners has not so directed, a court of record may order that the prisoner's earnings be collected and disbursed by the clerk of the court. Such order shall remain in force until rescinded by the board or the court, whichever made it.
(9) The county department of social services shall at the request of the court investigate and report to the court the amount necessary for the support of the prisoner's dependents.
(10) The sheriff may refuse to permit the prisoner to exercise his or her privilege to leave the jail as provided in subsection (1) of this section for any breach of discipline or other violation of jail regulations. Any such breach of discipline or other violation of jail regulations shall be reported to the sentencing court.
(11) A prisoner who has been convicted of one of the crimes of violence as defined in section 18-1.3-406 (2), who has been convicted of a sex offense as defined in sections 18-1.3-903 (5) and 18-3-411, who has been convicted of a crime, the underlying factual basis of which was found by the court to include an act of domestic violence, as defined in section 18-6-800.3 (1), or who has been convicted of a class 1 misdemeanor in which a deadly weapon is used shall not be eligible for home detention pursuant to this section.
(12) Persons sentenced to the county jail as a direct sentence or sentenced to the county jail as a condition of probation who are permitted to participate in work, educational, medical release, home detention, or day reporting programs pursuant to subsection (1) of this section shall receive one day credit against their sentences for each day spent in such programs. As used in this section, "day reporting program" means an alternative correctional sentence wherein a defendant is allowed to serve his or her sentence by reporting daily to a central location wherein the defendant is supervised in court-ordered activities.
Source: L. 2002: Entire article added with relocations, p. 1372, § 2, effective October 1. L. 2006: (1.1) amended, p. 18, § 2, effective March 8. L. 2008: (5)(d) amended, p. 1888, § 51, effective August 5.
Editor's note: This section is similar to former § 17-26-128 as it existed prior to 2002.
| Home | Abstract | Contents | Authors and Site Map | Tables | Index | Bibliography | Comments? | EJF Newsletters | Get EJF Newsletter |
| Chapter 16 — Applicable Colorado Laws |
| Next — Assaults |
| Back — Home detention programs |
This site is supported and maintained by the Equal Justice Foundation.