The Colorado Deferred Judgment And Sentence & The Risk of Violation
The Law In Colorado On The Deferred Judgment And Sentence
By Colorado Deferred Judgment – Probation Violation Criminal Defense Lawyer – Attorney – H. Michael Steinberg
What Is A Colorado Deferred Judgment and Sentence? Just What Does The Term Mean?
A Colorado Deferred Judgment and Sentence is a creation of statute. Under Colorado law – CRS § 16-7-403 – the parties to a criminal case — the DA – the Defendant and the Judge – may agree to what can be termed a “temporary plea.”.. or what I call a kind of “slow dismissal” of the case.
The judgement or conviction – in a “deferred” judgement (judgement means conviction) – is deferred for a period of time and never enters against a defendant IF the defendant successfully completes the terms of the agreement for the deferred judgement. In most cases – the defendant is placed on a “supervised” deferred – that is – they are under the supervision of the probation department as if they were under “standard probation.” Sometimes – in less serious cases – the deferred is unsupervised.
If the defendant complies with the conditions of the deferral, – like a civil contract – it is enforceable and they are then permitted to withdraw their guilty plea and the case is then dismissed. If there is an allegation of a violation of the “contract” of the deferred, the defendant is entitled to a hearing, after which the court – if they lose the hearing – may enter judgment and then sentence them as if the guilty plea was entered without the deferred – the defendant will not have the protection of the deferred and may then receive any sentence authorized by law, including – again – probation.
Under some recent changes to the law (2012) under a deferred judgment, CRS § 16-7-403 a six-month extension may be tacked on to the end of the deferred to assist with the collection of restitution.
To Truly Understand the Law – I Always Begin With a Close Look At The Actual Colorado Law As Regards The Deferred Judgement And Sentence
Please read the following:
§ 18-1.3-102. Deferred sentencing of defendant
[HMS – The following provisions address the length of the deferred judgement and sentence.]
(1)(a) 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 the purpose of entering judgment and sentence upon the plea of guilty for a period not to exceed four years for a felony or two years for a misdemeanor or petty offense or traffic offense. The period shall begin to run from the date that the court continues the case.
(b) The period may be extended for an additional time:
(I) Up to one hundred eighty-two 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; or
(II) Up to two years if the deferred judgment is for an offense listed in section 16-11.7-102(3), C.R.S., good cause is shown, and the district attorney and defendant consent to the extension.
[HMS – It is like a contract – ALL enter into a written stipulation and are bound by it.]
(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.
[HMS – The same as regular probation “in all respects.”
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.
[HMS – If you succeed the plea is withdrawn and he case is dismissed with prejudice – can never be filed again.]
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
[HMS – Mandatory entry of judgment if you violate]
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.
[HMS – Restitution]
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.
[HMS – The following sections deal with a breach – or a violation of the probation known as a deferred judgment and sentence]
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 seven 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-five 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.
A Closer Look At The Colorado Deferred Judgment and Sentence
Some call a deferred judgment “probation before judgment.” A deferred judgment and sentence (or DJ and S) is exactly as it sounds. If you are accused of a Colorado criminal act – during the plea bargaining process – to avoid a trial and possible conviction – you can agree to serve some period of probation – which – at the end of that period – permits you to withdraw your plea and to have the case completely dismissed – you are subject to many of the consequences of criminality without any sustaining an actual conviction.
Who Receives Colorado Deferred Judgments?
If you have previously been convicted of a felony – especially a violent felony or other serious crimes – you usually cannot enter a deferred judgment agreement. Because you are not convicted of a crime, you are not subjected to the same sentencing laws as those who suffer a conviction. The terms of the deferred judgment are fully negotiable in most instances. .but they follow a certain pattern.
The “Strings” of Colorado Deferred Judgments And Domestic Violence, Drug, and Property Crime Cases
There are “strings” in the DJ and S agreement. In Colorado domestic violence cases – the deferred will include a domestic violence evaluation and treatment ( as many as 36 weeks ). In Colorado drug crime cases – the deferred will include a drug and alcohol use evaluation and treatment as recommended. In Colorado theft and properly crime cases – the deferred may include repayment of restitution, theft classes, or other therapy that reflects on the original criminal charges.
The decision to “take the offer” of a deferred judgment is a difficult one.. The decision is especially troubling if you have a defense to the charges and the case against you is “weak.” If you accept the DJ and S you may be ordered to maintain a current address, to conduct compliance or “review” hearings and other modes of conduct, – such as community service, the avoidance of certain places, certain people or certain otherwise things you love to do – such as the ownership of guns – the consumption of alcohol or leaving the state or the country without first obtaining the “permission” of your PO.
The Benefit of The Colorado Deferred Judgment And Sentence
The direct benefit of the deferred judgment is certainty. The DA no longer has control over your life – the judge and the jury lose control over your future. You are in control and a dismissal of the charges is a very tempting goal.
One word of caution – the case – even after you are successful – stays on your record. All of the case facts remain a matter of public record. To remove the matter from your criminal history – you must go through the separate process of having the record sealed – expunged – that is obtain an order to seal the record.
Without sealing the case – employers, colleges, insurance companies, banks, lenders or others conducting a background check or asking questions on an application will most likely become aware of the arrest and the entry of the deferred judgment.
The Controversy of the Deferred Judgment – The Possible Probation Violation
The Colorado deferred judgment is controversial and can be criticized at several levels.
If a defendant completes the requirements of the deferred judgment – completes the conditions of the deferred judgment and not commit any new offenses during the period of the deferred judgment, the plea of guilty entered earlier is withdrawn, the case is dismissed and the case becomes sealable under Colorado law.
BUT – if there is a mistake – a screw up of sorts.. if you have a tough DA or an even tougher judge and you violate the terms of the agreement – you are then at the mercy of the court – the PO and the judge. Because a deferred is offered to individuals who typically have a clean record and if successful and is later sealed it will prevent others from finding the case on a background check, the offer can be so tempting the defendant ignores the risks.
If you pick up a new case that will violate the terms of the deferred – and expose you to a completely OPEN SENTENCE. If you are convicted in the new matter – there is no guarantee that the sentences will run at the same time – that is concurrent with one another. The revocation of the deferred judgment will result in a conviction that is permanent – may be a conviction of the HIGHEST CHARGE in the original case (typically a condition for a DA is that you plead to the highest charge in order to receive the deferred judgment offer) and will be on your criminal background check forever with the only exception – very old drug crime convictions – which are now sealable.
The risks of the deferred judgment are great – the benefits greater – but the decision is always yours – WITH THE ADVICE of an experience Colorado criminal defense lawyer.
The Colorado Deferred Judgment And Sentence and the Denver Colorado Criminal Defense Lawyer
The Law Offices of H. Michael Steinberg, in Denver, Colorado, provides criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.
H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer who will provide you with a free initial case consultation to evaluate your legal issues and answer your questions with an honest assessment of your options.
H. Michael Steinberg provides solid criminal defenses for clients throughout the Front Range of Colorado. Helping Clients To Make Informed Decisions about the Colorado Deferred Judgment And Sentence option.