Colorado Criminal Sentencing Law – How Do I Get A Probation Sentence?
Colorado Criminal Sentencing Law – How Do I Get A Probation Sentence? – A grant of probation in a felony case is not always assured. Probation is an agreement between a defendant and a judge that contains the kind of conditions necessary for the rehabilitation of the offender.
In deciding whether to grant probation the sentencing judge applies his or her own personal criteria which will be known to the experienced local Colorado criminal defense lawyers. As for lawyers less familiar with a particular judge’s propensities, those lawyers are left with the criteria for granting probation under the Colorado statute – §18-1.3-203 Criteria for granting probation.
Here is the law:
§ 18-1.3-203. [The] Criteria for granting probation.
(1) The court, subject to the provisions of this title and title 16, C.R.S., and having considered the purposes of sentencing described in section 18-1-102.5 , in its discretion may grant probation to a defendant unless, having regard to the nature and circumstances of the offense and to the history and character of the defendant, it is satisfied that imprisonment is the more appropriate sentence for the protection of the public because:
[HMS – These are the criteria that would persuade a judge NOT to grant probation. You do not want THESE criteria to apply in your case.]
(a) There is undue risk that during a period of probation the defendant will commit another crime; or
(b) The defendant is in need of correctional treatment that can most effectively be provided by a sentence to imprisonment as authorized by section 18-1.3-104 ; or
(c) A sentence to probation will unduly depreciate the seriousness of the defendant’s crime or undermine respect for law; or
(d) His or her past criminal record indicates that probation would fail to accomplish its intended purposes; or
(e) The crime, the facts surrounding it, or the defendant’s history and character when considered in relation to statewide sentencing practices relating to persons in circumstances substantially similar to those of the defendant do not justify the granting of probation.
[HMS – The following criteria – as applied in your case – SUPPORT a sentence to probation in a sentencing for a Colorado criminal case.]
(2) The following factors, or the converse thereof where appropriate, while not controlling the discretion of the court, shall be accorded weight in making determinations called for by subsection (1) of this section:
(a) The defendant’s criminal conduct neither caused nor threatened serious harm to another person or his or her property;
(b) The defendant did not plan or expect that his or her criminal conduct would cause or threaten serious harm to another person or his or her property;
(c) The defendant acted under strong provocation;
(d) There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant’s conduct;
(e) The victim of the defendant’s conduct induced or facilitated its commission;
(f) The defendant has made or will make restitution or reparation to the victim of his or her conduct for the damage or injury which was sustained;
(g) The defendant has no history of prior criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
(h) The defendant’s conduct was the result of circumstances unlikely to recur;
(i) The character, history, and attitudes of the defendant indicate that he or she is unlikely to commit another crime;
(j) The defendant is particularly likely to respond affirmatively to probationary treatment;
(k) The imprisonment of the defendant would entail undue hardship to himself or herself or his or her dependents;
(l) The defendant is elderly or in poor health;
(m) The defendant did not abuse a public position of responsibility or trust;
(n) The defendant cooperated with law enforcement authorities by bringing other offenders to justice, or otherwise.
(3) Nothing in this section shall be deemed to require explicit reference to these factors in a pre- sentence report or by the court at sentencing.
The Single Colorado Case That Explains What A Judge Considers In A Sentencing A Defendant to Probation – Logan v. People ex rel. Alamosa County
The 1958 case of Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958) is still the standard that is used by judges today to explain their reasoning process in deciding to grant – or to deny – probation in any given case.
Here are several excerpts from the case:
“Whether an applicant should be granted probation involves the exercise of a nice discretion on the part of the trial judge.”
“In the exercise of this discretion he necessarily considers three facets of the problem confronting him: the community, the offense, and the offender, in that order. If, in the consideration of these three factors, the trial judge concludes that the applicant is a worthy risk for probation, he has the power to grant it.”
“We live in an ordered society. He who may upset the good order and peace of the community, who may not adjust to society, who reveals an established behavior pattern which furnishes strong evidence that he lacks a sense of moral obligation, who is anti-social, and who is likely to be uncooperative, should not be loosed upon the public. From the standpoint of the community, he would make an unworthy risk.”
“The crime committed viewed in its setting; the nature and circumstances of the offense, particularly as they furnish a clue to the personality of the offender; whether the offense was violent or nonviolent; and the motives actuating the defendant in committing the offense, are components which the trial court will evaluate when considering the offense as a factor in the question of granting probation”
Colorado Criminal Sentencing Law – How Do I Get A Probation Sentence?
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