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The Conditions Of Probation In A Colorado Deferred Judgment and Sentence And The Criteria For Granting Probation

By Colorado Criminal Probation Violations Defense Lawyer – Attorney – H. Michael Steinberg

The Conditions Of Probation

The Conditions Of Probation In A Colorado Deferred Judgment and Sentence And The Criteria For Granting Probation

The Conditions Of Probation In A Colorado Deferred Judgment and Sentence And The Criteria For Granting Probation

In A Colorado Deferred Judgment Agreement and Sentence And The Criteria For Granting Probation  – can be very complex and in most cases such as drug and alcohol based cases and even economic crime cases  the sentence will contain very specific terms provisions and conditions of probation.

Other conditions of probation that are set are more “standard” more “flexible.”  You need to understand both.. 

We start with the Colorado Law Governing The Authority For A Deferred Judgment and Sentence

To understand a probation violation – you must start with how probation is granted and how conditions of probation are “set” by agreement in the typical deferred judgment and sentence.

The most important sections have my analysis in [HMS – brackets]

18-1.3-102.   Deferred sentencing of defendant 

[HMS – This first paragraph sets up the basic requirements of deferred judgment probation – it is an agreement of a specific length of years – the right to a speedy trial (section (3) below) is waived and the period of the deferred starts on the date of the plea – just like a contract]

(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.

[HMS – As of 2012 – the judge has the authority to extend the period of the DJ and S if restitution has not been fully paid]

(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

[HMS – The deferred can also be extended for certain crimes in 16-11.7-102(3) – these are sex crimes that require long periods of probation for mandated treatment]

(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 – The next section makes clear that a DJ and S is the same as standard probation in all respects and that the deferred must be in writing.]

(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.

[HMSColorado domestic violence probation requires a specific type of dv treatment – the following section makes that clear.]

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 – The following section addressee the benefit of dismissal with prejudice ( can never be re-filed – recharged – double jeopardy attaches]

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 – BUT – here is the danger of a deferred judgment – IF you violate the DJ and S ….]

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.

[HMS – This section sets certain deadlines for filing a motion to revoke a deferred judgment. It also sets the burden of proving the violation at a “preponderance of the evidence ” NOT “beyond a reasonable doubt.” ]

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.

[HMS – the final section establishes the right to seek a warrant for the arrest of a probationer who it is alleged has violated a term and condition of probation.]

(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. 

Where There Is No Agreement To A Colorado Deferred Judgment And A Conviction Is The Outcome – A Judge May Still Grant Probation In Most Cases Under § 18-1.3-203.

The following Colorado law is what judges use to decide whether probation should be granted if the law or the plea agreement permits a sentence to probation.

The Conditions Of Probation In A Colorado Deferred Judgment and Sentence And The Criteria For Granting Probation

Her is the law with analysis [HMS – analysis of law]

§ 18-1.3-203.   Criteria for granting probation 

[HMS – Sections (1) (a) – (e) set the MAIN CRITERIA for the granting of probation – that is at the discretion of the judge.]

(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:

(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 – Section (2) addresses what is commonly called “MITIGATING FACTOR” supporting a grant of probation.]

(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. 

Some Final Thoughts About Probation

Probation is a privilege rather than a right. It suspends conditionally what might be a harsher judgment.

It is like a contract made by the court.

A sentencing judge considers three facets of the problem before making a grant of probation

          1. the community
          2. the offense,
          3. and the offender

“A Worthy Risk”

If upon consideration of these factors the judge concludes that the applicant is a worthy risk for probation, the court has the power to grant it.

The Conditions Of Probation In A Colorado Deferred Judgment and Sentence And The Criteria For Granting Probation

Denver Colorado Criminal Defense Lawyer H. Michael Steinberg

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.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases. Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defenses for clients throughout the Front Range of Colorado….as to The Conditions Of Probation In A Colorado Deferred Judgment and Sentence And The Criteria For Granting Probation.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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