Alternative Sentencing In Criminal Cases —C.R.S. 18-1.3-101 et seq.

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Index

Current law

18-1.3-101. Pretrial diversion.

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 (Repealed)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.


 

Current law (August 2013)

18-1.3-101. Pretrial diversion.

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Note: Prior to 2013 this statute was formerly titled Deferred Prosecution.

(1) Legislative intent. The intent of this section is to facilitate and encourage diversion of defendants from the criminal justice system when diversion may prevent defendants from committing additional criminal acts, restore victims of crime, facilitate the defendant's ability to pay restitution to victims of crime, and reduce the number of cases in the criminal justice system. Diversion should ensure defendant accountability while allowing defendants to avoid the collateral consequences associated with criminal charges and convictions. A district attorney's office may develop or continue to operate its own diversion program that is not subject to the provisions of this section. If a district attorney's office accepts state moneys to create or operate a diversion program pursuant to this section, the district attorney's office must comply with the provisions of this section.

(2) Period of diversion. In any case, either before or after charges are filed, the district attorney may suspend prosecution of the offense for a period not to exceed two years. The period of diversion may be extended for an additional time up to one year if the failure to pay restitution is the sole condition of diversion that has not been fulfilled, because of inability to pay, and the defendant has a future ability to pay. During the period of diversion the defendant may be placed under the supervision of the probation department or a diversion program approved by the district attorney.

(3) Guidelines for eligibility. Each district attorney that uses state moneys for a diversion program pursuant to this section shall adopt policies and guidelines delineating eligibility criteria for pretrial diversion and may agree to diversion in any case in which there exists sufficient admissible evidence to support a conviction. In determining whether an individual is appropriate for diversion, the district attorney shall consider:

(a) The nature of the crime charged and the circumstances surrounding it;

(b) Any special characteristics or circumstances of the defendant;

(c) Whether diversion is consistent with the defendant's rehabilitation and reintegration; and

(d) Whether the public interest will be best served by diverting the individual from prosecution.

(4) Before entering into a pretrial diversion agreement, the district attorney may require a defendant to provide information regarding prior criminal charges, education and work experience, family, residence in the community, and other information relating to the diversion program. The defendant shall not be denied the opportunity to consult with legal counsel before consenting to diversion. Legal counsel may be appointed as provided under article 1 of title 21, C.R.S.

(5) In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of an offense, the underlying factual basis of which involves domestic violence as defined in section 18-6-800.3 (1), is not eligible for pretrial diversion unless charges have been filed, the individual has had an opportunity to consult with counsel, and the individual has completed a domestic violence treatment evaluation, which includes the use of a domestic violence risk assessment instrument, conducted by a domestic violence treatment provider approved by the domestic violence offender management board as required by section 16-11.8-103 (4), C.R.S. The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, that the individual is appropriate for the program.

(6) In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of a sex offense as defined in section 18-1.3-1003 (5) is not eligible for pretrial diversion unless charges have been filed and, after the individual has had an opportunity to consult with counsel, the individual has completed a sex-offense-specific evaluation, which includes the use of a sex-offense-specific risk assessment instrument, conducted by an evaluator approved by the sex offender management board as required by section 16-11.7-103 (4), C.R.S. The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, that the individual is appropriate for the program. Notwithstanding that a successfully completed diversion agreement does not constitute a history of sex offenses for purposes of sections 16-11.7-102 (2) (a) (II) and 16-22-103 (2) (d), C.R.S., the information constituting the crimes charged and facts alleged shall be available for use by a court, district attorney, any law enforcement agency, or agency of the state judicial department, if otherwise permitted by law, in any subsequent criminal investigation, prosecution, risk or needs assessment evaluation, sentencing hearing, or during a probation or parole supervision period.

(7) Notwithstanding any other provision of this section, an individual accused of any of the following sexual offenses is not eligible for participation in a diversion program established in a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section:

(a) Sexual assault as described in section 18-3-402;

(b) Sexual assault on a child as described in section 18-3-405;

(c) Any sexual offense committed against an at-risk adult or an at-risk juvenile, as described in section 18-6.5-101 (1) and (1.5);

(d) Any sexual offense committed with the use of a deadly weapon as described in section 18-1-901 (3) (e);

(e) Enticement of a child, as described in section 18-3-305;

(f) Sexual exploitation of a child as described in section 18-6-403;

(g) Procurement of a child for exploitation, as described in section 18-6-404;

(h) Sexual assault on a child by one in a position of trust, as described in section 18-3-405.3; or

(i) Any child prostitution offense in part 4 of article 7 of this title.

(8) Diversion programs may include, but are not limited to, programs operated by law enforcement upon agreement with a district attorney, district attorney internally operated programs, programs operated by other approved agencies, restorative justice programs, or supervision by the probation department. References to "deferred prosecution" in Colorado statutes and court rules shall apply to pretrial diversion as authorized by this section.

(9) Diversion agreements. (a) All pretrial diversions shall be governed by the terms of an individualized diversion agreement signed by the defendant, the defendant's attorney if the defendant is represented by an attorney, and the district attorney.

(b) The diversion agreement shall include a written waiver of the right to a speedy trial for the period of the diversion. All diversion agreements shall include a condition that the defendant not commit any criminal offense during the period of the agreement. Diversion agreements may also include provisions, agreed to by the defendant, concerning payment of restitution and court costs, payment of a supervision fee not to exceed that provided for in section 18-1.3-204 (2) (a) (V), or participation in restorative justice practices as defined in section 18-1-901 (3) (o.5). Any pretrial diversion supervision fees collected may be retained by the district attorney for purposes of funding its adult pretrial diversion program. The conditions of diversion shall be limited to those specific to the individual defendant or necessary for proper supervision of the individual defendant. A diversion agreement shall provide that if the defendant fulfills the obligations described therein, the court shall order all criminal charges filed against the defendant dismissed with prejudice.

(c) The diversion agreement may require an assessment of the defendant's criminogenic needs, to be performed after the period of diversion has begun by either the probation department or a diversion program approved by the district attorney. Based on the results of that assessment, the probation department or approved diversion program may direct the defendant to participate in programs offering medical, therapeutic, educational, vocational, corrective, preventive, or other rehabilitative services. Defendants with the ability to pay may be required to pay for such programs or services.

(d) The diversion agreement may include a statement of the facts the charge is based upon authored by the defendant and agreed to by the defendant's attorney if the defendant is represented by an attorney and the district attorney. The statement is admissible as impeachment evidence against the defendant in the criminal proceedings if the defendant fails to fulfill the terms of the diversion agreement and criminal proceedings are resumed.

(e) A defendant shall not be required to enter any plea to a criminal charge as a condition of pretrial diversion. A defendant's or counsel's statement in a diversion conference or in any other discussion of a proposed diversion agreement, including an evaluation performed pursuant to subsections (5) and (6) of this section, other than a statement provided for in paragraph (d) of this subsection (9), shall not be admissible as evidence in criminal proceedings on the crimes charged or facts alleged.

(f) If the district attorney agrees to offer diversion in lieu of further criminal proceedings and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement may be either filed with the court or held by the parties. A court filing shall be required only if the probation department supervises the defendant. When a diversion agreement is reached, the court shall stay further proceedings.

(10) Diversion outcomes. (a) During the period of diversion, the supervising program or agency designated in the diversion agreement shall provide the level of supervision necessary to facilitate rehabilitation and ensure the defendant is completing the terms of the diversion agreement.

(b) Upon the defendant's satisfactory completion of and discharge from supervision, the court shall dismiss with prejudice all charges against the defendant. The effect of the dismissal is to restore the defendant to the status he or she occupied before the arrest, citation, or summons. A successfully completed diversion agreement shall not be considered a conviction for any purpose. A person with an order of dismissal entered pursuant to this article may not be subject to charge, prosecution, or liability under Colorado law of perjury or otherwise giving a false statement by reason of his or her failure to recite or acknowledge the arrest, citation, or summons in response to any inquiry made for any purpose.

(c) At any point after a diversion agreement is entered a defendant may petition the court to seal all arrest and other criminal records pertaining to the offense, using the procedure described in section 24-72-308, C.R.S. Unless otherwise prohibited under section 24-72-308 (3) (a), C.R.S., the court shall issue a sealing order if requested by the defendant following successful completion of a diversion agreement.

(d) If the defendant violates the conditions of the diversion agreement, the supervising entity shall provide written notice of the violation to the defendant, the district attorney, and the court. The district attorney, in his or her sole discretion, may initiate revocation of a diversion agreement by the filing of a criminal complaint, information, or indictment, or if charges have already been filed, by giving the court notice of intent to proceed with the prosecution. The defendant may, within fourteen days after the first court appearance following such a filing, request a hearing to contest whether a violation occurred. The district attorney has the burden by a preponderance of the evidence to show that a violation has in fact occurred, and the procedural safeguards required in a revocation of probation hearing pursuant to section 16-11-206, C.R.S., shall apply. The court may, when it appears that the alleged violation of the diversion agreement is a pending criminal offense against the defendant, continue the diversion revocation hearing until the completion of the criminal proceeding. If the court finds a violation has occurred, or a hearing is not requested, the prosecution may continue. If the court finds the district attorney has not proven a violation, the court shall dismiss the criminal case without prejudice and return the defendant to the supervision of the diversion program to complete the terms of the agreement.

(e) If a defendant is prosecuted following a violation of a diversion agreement, a factual statement entered pursuant to paragraph (d) of subsection (9) of this section is admissible as impeachment evidence. Any other information concerning diversion, including participation in a diversion program, including an evaluation performed pursuant to subsections (5) and (6) of this section, the terms of a diversion agreement, or statements made to treatment providers during a diversion program, shall not be admitted into evidence at trial for any purpose.

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History: Source: L. 2002: Entire article added with relocations, p. 1365, § 2, effective October 1. L. 2012: (1) amended, (SB 12-175), ch. 208, p. 863, § 105, effective July 1. L. 2013: Entire section R&RE, (HB 13-1156), ch. 336, p. 1952, § 1, effective August 7.

Editor's note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.

(1) This article was added with relocations in 2002 containing provisions of some sections formerly located in title 16. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.

(2) Amendments made by House Bills 02-1141, 02-1223, 02-1225, 02-1229, 02-1258, and 02-1352 and Senate Bills 02-010, 02-018, 02-019, 02-036, and 02-057 to sections containing criminal sentencing provisions have been harmonized with the provisions of this article pursuant to section 398 of House Bill 02-1046. See the former sections as contained in titles 16, 17, and 18 of the 2001 Colorado Revised Statutes. See the comparative table located in the back of the index.

Cross references: For the legislative declaration contained in the 2002 act enacting this article, see section 1 of chapter 318, Session Laws of Colorado 2002.

Editor's note: Section 173 of chapter 208, Session Laws of Colorado 2012, provides that the act amending subsection (1) applies to specified time intervals. For more information, see page 896 of Session Laws of Colorado 2012.

Annotation

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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)

.18-1.3-102. Deferred sentencing of defendant.

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(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.

Recent annotations

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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).

18-1.3-103. Deferred sentencing - drug offenders - legislative declaration - demonstration program - repeal. (Repealed)

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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.)

18-1.3-104. Alternatives in imposition of sentence.

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(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.

(b.5)

(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.

(II)

(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.

(h)

(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.

(II) Repealed.

(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.

(2)

(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).

(3)

(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.

Annotation

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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).

18-1.3-105. Authority of sentencing courts to utilize home detention programs.

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(1)

(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.

18-1.3-106. County jail sentencing alternatives - work, educational, and medical release - home detention - day reporting.

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(1)

(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:

(I) Seeking employment;

(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;

(V) Medical treatment;

(VI) Home detention; or

(VII) Day reporting.

(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.;

(f) Payment of restitution;

(g) Payment of a time payment fee;

(h) Payment of late fees;

(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.

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