16-11-205. Arrest of probationer - revocation.
Statute text
(1) A probation officer may arrest any probationer when:
(a) The officer has a warrant commanding that the probationer be arrested; or
(b) The officer has probable cause to believe that a warrant for the probationer's arrest has been issued in this state or another state for any criminal offense or for violation of the conditions of probation; or
(c) Any offense pursuant to the laws of this state that is statutorily eligible for arrest has been or is being committed by the probationer in his presence; or
(d) (Deleted by amendment, L. 2022.)
(e) The officer has probable cause to believe that the conditions of probation have been violated and probable cause to believe that the probationer is leaving or about to leave the state, or that the probationer will fail or refuse to appear before the court to answer charges of violation of the conditions of probation, or that the arrest of the probationer is necessary to protect the safety of the community or another person or prevent the commission of a crime.
(f) (Deleted by amendment, L. 2022.)
(2) Unless any circumstances as provided in subsection (1) or (6.5) of this section exist, when a probation officer has reason to believe that the probationer violated conditions of probation and that a petition for revocation is necessary and appropriate subject to section 16-11-215, the probation officer shall issue a summons requiring the probationer to appear before the court at a specified time and place to answer charges of violation of the conditions of probation. The summons, unless accompanied by a copy of a complaint, shall contain a brief statement of the violation and the date and place thereof. Failure of the probationer to appear before the court as required by the summons shall be deemed a violation of the conditions of probation.
(3) If, rather than issuing a summons, a probation officer makes an arrest, without warrant, of a probationer, the probationer shall be taken without unnecessary delay before the nearest available judge of a court of record. Any probationer so arrested shall have all of the rights afforded by the provisions of this code to persons incarcerated before trial of criminal charges and may be admitted to bail pending probation revocation hearing.
(4) Within seven days after the arrest of any probationer as provided in this section, or within a reasonable time after the issuance of a summons under this section, the probation officer shall complete his or her investigation and either:
(a) File a complaint in the court having jurisdiction of the violation of probation; or
(b) Order the release of the probationer, if imprisoned, and notify the probationer that he is relieved of obligation to appear before the court. In such event, the probation officer shall give written notification to the court of his action.
(5) A complaint alleging the violation of a condition of probation may be filed either by the probation officer pursuant to subsection (4) of this section or by the district attorney. Such complaint must contain the name of the probationer, must identify the violation charged and the condition of probation alleged to have been violated, including the date and approximate location thereof, must include a summary of the violation behavior history and any behavioral responses applied consistent with the structured and individualized behavioral responses developed pursuant to section 16-11-215 and must be signed by the probation officer or the district attorney. A copy thereof must be given to the probationer a reasonable length of time before the probationer appears before the court.
(6) A warrant for the arrest of any probationer for violation of the conditions of probation 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 probation has been violated and that the arrest of the probationer 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 probationer is found.
(6.5) Unless there is reason to believe that a probationer would not appear, would interfere with the criminal justice process, or poses substantial risk of serious harm to others, a probation officer shall issue a summons rather than request a warrant when filing a petition for revocation.
(7) A person or entity that provides supervision pursuant to section 18-1.3-202 (2), C.R.S., may issue a summons and file a complaint with the court for a defendant under his or her supervision in accordance with the provisions of this section.
History
Source: L. 72: R&RE, p. 244, 1. C.R.S. 1963: 39-11-205. L. 87: (5) amended, p. 605, 6, effective April 6. L. 89: (1)(f) added, p. 876, 11, effective June 5. L. 2012: IP(4) amended, (SB 12-175), ch. 208, p. 855, 86, effective July 1. L. 2016: (7) added, (SB 16-164), ch. 284, p. 1160, 1, effective August 10. L. 2022: (1), (2), and (5) amended and (6.5) added, (HB 22-1257), ch. 69, p. 352, 3, effective July 1, 2023.
Annotations
ANNOTATION
Annotations
Clear purpose of 16-11-204 (3) is to provide criminal defendant with notice of terms of his probation. People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980).
But failure to comply with 16-11-204 (3) did not require reversal of revocation. People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980).
Defendant presumed to know that violation may result in revocation. Probation is a privilege, and a criminal defendant is presumed to know that the violation of any term of his probation may result in revocation. People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980).
Subsection (4) limitation inapplicable to deferred sentence revocation proceeding. Since the five-day limitation specified in subsection (4) is not a procedural safeguard required in a probation revocation hearing pursuant to 16-11-206, but rather is a prehearing requirement imposed on the probation officer, it is not within the contemplation of 16-7-403 (2). People v. Schoonover, 654 P.2d 1340 (Colo. App. 1982).
Application for entry of deferred judgment and imposition of sentence was sufficient to notify defendant of the violations he was alleged to have committed. People v. Allen, 952 P.2d 764 (Colo. App. 1997), rev'd on other grounds, 973 P.2d 620 (Colo. 1999).
Subsection (3) did not apply to actions of district attorney. People v. McPherson, 897 P.2d 923 (Colo. App. 1995).
It would be exalting form over substance for the court to hold that a probation term was not tolled by the filing of a complaint in support of issuance of an arrest warrant to initiate revocation of probation proceedings. People v. Galvin, 961 P.2d 1137 (Colo. App. 1997).
To toll the probation period until probation revocation proceedings are completed, it is sufficient that: (1) A probation officer issue a summons requiring the probationer to appear in court; (2) a probation officer arrest the probationer; (3) a complaint be filed for the revocation of probation; or (4) a report be filed by a probation officer or a verified complaint by any person, together with a request for an arrest warrant. People v. Galvin, 961 P.2d 1137 (Colo. App. 1997).
Probation is a privilege, not a right. Whether a probationer has violated a probation condition presents a question of fact. Once the court finds that a violation has occurred, whether probation should be revoked lies within the discretion of the court. People v. Ickler, 877 P.2d 863 (Colo. 1994); People v. Colabello, 948 P.2d 77 (Colo. App. 1997); People v. Howell, 64 P.3d 894 (Colo. App. 2002).
Parole revocation order must be reversed because defendant did not receive written notice of the condition of probation that he was alleged to have violated. People v. Calderon, 2014 COA 144, 356 P.3d 993.
Subsection (5) does not specify particular format for complaint alleging violation of probation. The constitutional sufficiency of notice to a probationer that is written, but provided in an irregular format, should be measured by whether the notice sufficiently fulfilled the central function of informing the probationer of the alleged basis for revocation. The original revocation complaint served on the probationer did not specify that the revocation was based upon conviction for a murder the probationer committed while on probation, but instead included the original charges filed. The probationer received constitutionally sufficient written notice, however, in a motion to continue the revocation hearing that explicitly identified the murder conviction as a ground for revocation. People v. Robles, 209 P.3d 1173 (Colo. App. 2009).
The district court lacks the authority to order the probation department to file a complaint to initiate probation revocation. People v. Karwacki, 2023 COA 3M, __ P.3d __.
Applied in Adair v. People, 651 P.2d 389 (Colo. 1982); People v. Clark, 654 P.2d 847 (Colo. 1982).