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Will A New Deferred Judgement And Sentence Act To Revoke A Prior Deferred Judgement And Sentence Under Colorado Law?

By H. Michael Steinberg Colorado Probation Violation Criminal Defense Lawyer

Will A New Deferred Judgement And Sentence Act To Revoke A Prior Deferred Judgement And Sentence Under Colorado Law?Will A New Deferred Judgement And Sentence Act To Revoke A Prior Deferred Judgement And Sentence Under Colorado Law? The question of whether the a plea bargain of a deferred judgement and sentence after the commission of a new crime will act to revoke a prior deferred judgement and sentence under Colorado law was recently answered by the Colorado Court Of Appeals.

In the recently decided case of People v. Blackwell, the Colorado Court of Appeals held that where a person is on a deferred judgement and sentence and negotiates a second deferred judgement and sentence  to a new charge incurred in a separate case while ON the first deferred judgement and sentence – that second plea of guilty (pursuant to the new deferred judgement) – acts as a “conviction” for the purpose of revocation of the first deferred judgement and sentence.

Put differently, a condition of every Colorado deferred judgement and sentence (DJ and S) is that the person placed on the DJ and S “violate no federal, state, or local criminal law.” If, after being placed on a DJ and S a person commits another offense and that new crime is plea bargained to another DJ and S, even though a final judgement does not enter in the new case, a “conviction” for the purposes of Colorado probation revocation law is established.

Understanding How A Deferred Judgement (Probation) Is Revoked

There are two basic ways to violate a deferred judgement and sentence. One violates a deferred judgement most commonly by committing a “technical violation” – such as not performing or violating a “condition” of probation – an example would be not doing useful public service hours as ordered by the Court. This is easily proven in court because the burden of proof is the much less difficult to establish – “by a preponderance of the evidence.”

The second basic way of violating a deferred judgement and sentence is to commit a new crime.

If the violation of the deferred judgment is a new criminal offense, proof of that violation “must be established beyond a reasonable doubt unless the Defendant has been convicted thereof in a criminal proceeding.” C.R.S. § 16-11-206(3).

Section 16-7-206  – The Key Law

Here is the key statute that addressees this issue – focus on subsection (3):

Colorado Law – Probation Revocation Hearings

(1) At the first appearance of the probationer in court or at the commencement of the hearing, whichever is first in time, the court shall advise the probationer as provided in section 16-7-206 insofar as such matters are applicable; except that there shall be no right to a trial by jury in proceedings for revocation of probation.

(2) At or prior to the commencement of the hearing, the court shall advise the probationer of the charges against him and the possible penalties therefor and shall require the probationer to plead guilty or not guilty.

(3) At the hearing, the prosecution has the burden of establishing by a preponderance of the evidence the violation of a condition of probation; except that the commission of a criminal offense must be established beyond a reasonable doubt unless the probationer has been convicted thereof in a criminal proceeding.

When, in a revocation hearing, the alleged violation of a condition is the probationer’s 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 court may, when it appears that the alleged violation of conditions of probation consists of an offense with which the probationer is charged in a criminal proceeding then pending, continue the probation revocation hearing until the termination of the criminal proceeding. Any evidence having probative value shall be received regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.

(4) If the probationer is in custody, the hearing shall be held within fourteen days after the filing of the complaint, unless delay or continuance is granted by the court at the instance or request of the probationer or for other good cause found by the court justifying further delay.

(5) If the court determines that a violation of a condition of probation has been committed, it shall, within seven days after the said hearing, either revoke or continue the probation. If probation is revoked, the court may then impose any sentence or grant any probation pursuant to the provisions of this part 2 which might originally have been imposed or granted.

What Does “Unless the Probationer Has Been Convicted Thereof in a Criminal Proceeding” Really Mean?

In Blackwell, the Colorado Court Of Appeals held that a plea agreement that includes a plea of guilty to a deferred judgement “constitutes a conviction within the meaning of the revocation hearing statute”

Here are the Court’s own words and reasoning:

….when the revocation hearing statute is read with the statutes governing deferred judgments and acceptance of guilty pleas, the only reasonable interpretation is that a defendant who pleads guilty to a state criminal offense in the course of entering into a later deferred judgment agreement has been “convicted” within the meaning of the revocation hearing statute.

Importantly – the decision to revoke probation based on the recognition that the second deferred judgement is still “within the discretion of the trial court.” A Colorado Judge need NOT violate the prior deferred judgement if the Court decides not to do so. ( see Section (5) above)

While a deferred judgment is not a “judgment of conviction” or a final, appealable judgment, thus it is not a conviction for other purposes – such as a criminal history, it is a conviction for the purposes of a revocation of a deferred judgement and sentence.

Here is the Court’s explanation for the dual definition of a conviction under Colorado Law:

(“[A] ‘conviction’ occurs upon the acceptance by the trial court of the defendant’s plea of guilty; whereas, a ‘judgment of conviction’ occurs, if at all, when it is determined that the defendant has violated the conditions of the deferred judgment and sentence . . . .”

Will A New Deferred Judgement And Sentence Act To Revoke A Prior Deferred Judgement And Sentence Under Colorado Law?

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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael at your side every step of the way – advocating for justice and the best possible result in your case.

Colorado Experienced Criminal DefenseABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Will A New Deferred Judgement And Sentence Act To Revoke A Prior Deferred Judgement And Sentence Under Colorado Law?

Summary
Article Name
Will A New Deferred Judgement And Sentence Act To Revoke A Prior Deferred Judgement And Sentence Under Colorado Law?
Description
The question of whether the a plea bargain of a deferred judgement and sentence after the commission of a new crime will act to revoke a prior deferred judgement and sentence under Colorado law was recently answered by the Colorado Court Of Appeals.
Author

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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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