18-1.3-201. Application for probation.
Statute text
(1) (a) A person who has been convicted of an offense, other than a class 1 felony or a civil infraction, is eligible to apply to the court for probation.
(b) Repealed.
(2) (a) The provisions of this subsection (2) shall apply to any person whose application for probation is based on a conviction for a felony, which conviction occurred before May 25, 2010.
(a.5) A person who has been twice or more convicted of a felony under the laws of this state, any other state, or the United States prior to the conviction on which his or her application is based shall not be eligible for probation.
(b) Notwithstanding any other provision of law except the provisions of paragraph (c) of this subsection (2), a person who has been convicted of one or more felonies under the laws of this state, any other state, or the United States within ten years prior to a class 1, 2, or 3 felony conviction on which his or her application is based shall not be eligible for probation.
(c) Notwithstanding the provisions of paragraph (a.5) of this subsection (2) and subsection (4) of this section, an offender convicted of a violation of section 18-18-403.5 may be eligible for probation upon recommendation of the district attorney.
(d) Repealed.
(2.1) Repealed.
(2.5) (a) The provisions of this subsection (2.5) shall apply to any person whose application for probation is based on a conviction for a felony, which conviction occurred on or after May 25, 2010.
(b) Except as described in subsection (4)(a) of this section, a person who has been twice or more convicted of a felony upon charges separately brought and tried and arising out of separate and distinct criminal episodes under the laws of this state, any other state, or the United States prior to the conviction on which the person's application is based is not eligible for probation if the current conviction or a prior conviction is for:
(I) First or second degree murder, as described in section 18-3-102 or 18-3-103;
(II) Manslaughter, as described in section 18-3-104;
(III) First or second degree assault, as described in section 18-3-202 or 18-3-203;
(IV) First or second degree kidnapping, as described in section 18-3-301 or 18-3-302;
(V) A sexual offense as described in part 4 of article 3 of this title;
(VI) First degree arson, as described in section 18-4-102;
(VII) First or second degree burglary, as described in section 18-4-202 or 18-4-203;
(VIII) Robbery, as described in section 18-4-301;
(IX) Aggravated robbery, as described in section 18-4-302, or aggravated robbery of controlled substances, as described in section 18-4-303, as it existed prior to October 1, 2023;
(X) Theft from the person of another, as described in section 18-4-401 (5);
(XI) Any felony offense committed against a child, as described in article 3, 6, or 7 of this title; or
(XII) Any criminal attempt or conspiracy to commit any of the offenses specified in this paragraph (b).
(c) Failure to register as a sex offender, as described in section 18-3-412.5, shall not constitute a sexual offense for the purposes of subparagraph (V) of paragraph (b) of this subsection (2.5).
(3) An application for probation shall be in writing upon forms furnished by the court, but, when the defendant has been convicted of a misdemeanor or any petty offense, the court, in its discretion, may waive the written application for probation.
(4) (a) (I) The restrictions upon eligibility for probation in subsections (2) and (2.5) of this section may be waived by the sentencing court regarding a particular defendant upon recommendation of the district attorney approved by an order of the sentencing court.
(II) Repealed.
(b) Upon entry of an order pursuant to this subsection (4) regarding a particular defendant, such defendant shall be deemed to be eligible to apply to the court for probation pursuant to this section.
(5) For purposes of paragraph (a.5) of subsection (2) of this section and paragraph (a) of subsection (2.5) of this section, "conviction" means a verdict of guilty or the entry of a plea of guilty or nolo contendere. "Conviction" does not include a plea to a deferred judgment and sentence pursuant to section 18-1.3-102 until the deferred judgment and sentence is revoked.
History
Source: L. 2002: Entire article added with relocations, p. 1375, 2, effective October 1. L. 2003: (2) amended and (2.1) added, p. 2689, 7, effective July 1. L. 2007: (2)(d) and (2.1) repealed, p. 1689, 10, effective July 1. L. 2010: (1)(b) and (4)(a)(II) repealed, (2) and (4)(a)(I) amended, and (2.5) added, (HB 10-1338), ch. 257, pp. 1147, 1145, 2, 1, effective May 25; (2)(c) amended, (HB 10-1352), ch. 259, p. 1173, 16, effective August 11. L. 2012: (5) added, (HB 12-1310), ch. 268, p. 1396, 12, effective June 7. L. 2013: (3) amended, (SB 13-250), ch. 333, p. 1935, 54, effective October 1. L. 2021: (1)(a) amended, (SB 21-271), ch. 462, p. 3169, 183, effective March 1, 2022. L. 2023: IP(2.5)(b) and (2.5)(b)(IX) amended, (HB 23-1293), ch. 298, p. 1783, 4, effective October 1.
Annotations
Editor's note: (1) This section is similar to former 16-11-201 as it existed prior to 2002.
(2) Amendments to subsection (2)(c) by House Bill 10-1338 and House Bill 10-1352 were harmonized.
(3) Section 77 of chapter 298 (HB 23-1293), Session Laws of Colorado 2023, provides that the act changing this section applies to offenses committed on or after October 1, 2023.
Annotations
Cross references: (1) For procedures relevant to application for probation, see Crim. P. 32.
(2) For the legislative intent contained in the 2003 act amending subsection (2) and enacting subsection (2.1), see section 1 of chapter 424, Session Laws of Colorado 2003.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982). For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982). For article, "Criminal Law", which discusses a Tenth Circuit decision dealing with probation proceedings, see 61 Den. L.J. 274 (1984).
Annotator's note. Since 18-1.3-201 is similar to 16-11-201 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.
This section is general in nature, and excepts only class one felonies and class two petty offenses. People v. Burke, 185 Colo. 19, 521 P.2d 783 (1974).
Misdemeanant may apply for probation. An offense specifically designated by statute as a misdemeanor, although for some purposes might be characterized as a petty offense, comes plainly within the law permitting application for probation. Coffey v. County Court, 177 Colo. 81, 492 P.2d 839 (1972) (decided under repealed 39-16-3, C.R.S. 1963).
The general assembly did not intend to repeal the mandatory sentencing provision of 42-2-130, sub silentio, by implication, or otherwise by enactment of this section. People v. Burke, 185 Colo. 19, 521 P.2d 783 (1974).
Subsection (2) cannot be read to exclude persons convicted of two prior felonies from community correctional programs, since such programs are not purely probationary. People ex rel. VanMeveren v. District Court, 195 Colo. 34, 575 P.2d 4 (1978).
Court may not disregard legislative sentencing mandates. A court is not free to disregard the legislative mandate of 16-11-301 and 16-11-308 and this section, even when it appears to dictate a sentence which the court considers inappropriate to a particular case. People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981).
Unconstitutionally obtained conviction cannot be considered for eligibility for probation. People v. McIntosh, 695 P.2d 795 (Colo. App. 1984).
Subsection (2) prohibits judge from utilizing suspended sentence as means for granting probation. The legislative mandate of subsection (2) is intended to prohibit a trial judge from circumventing the clear wording of the statute by utilizing a suspended sentence as a means for granting probation. The statutory command requires incarceration when any defendant, before the court for imposition of sentence, has been previously convicted of two felonies. Herrman v. District Court, 186 Colo. 350, 527 P.2d 1168 (1974).
Trial court may not suspend sentence after denying probation. There are no provisions in this article authorizing the suspension of imposition or execution of sentence apart from a concomitant grant of probation, and a trial court may not circumvent the statutory requirements by denying probation and thereafter undertaking to suspend a sentence validly imposed. People v. Patrick, 38 Colo. App. 103, 555 P.2d 182 (1976).
Two felonies need not be separately brought and tried for purposes of determining eligibility for probation. People v. Nicholas, 700 P.2d 921 (Colo. App. 1984).
A conviction from another state can satisfy the two prior felony rule for purposes of making the defendant ineligible for probation. People v. Dominguez, 2021 COA 76, 494 P.3d 682.
Court properly determined that defendant's attempted burglary conviction from another state was a disqualifying offense under the two prior felony rule. Even though the other state's attempt statute does not include the substantial step element of this state's attempt statute, there is no functional difference between the two statutes. People v. Dominguez, 2021 COA 76, 494 P.3d 682.
The more restrictive provisions of subsection (4)(a)(II) for placing a defendant twice convicted of a felony on probation do not prevent the court from placing any defendant twice convicted of a felony on probation under the provisions of subsection (4)(a)(I). Chism v. People, 80 P.3d 293 (Colo. 2003).
To interpret subsection (4)(a)(II) as prescribing the exclusive conditions for waiver of the two-felony rule would repeal by implication subsection (4)(a)(I), which clearly permits a broader class of waivers. Constructions that work a repeal by implication are not favored unless unavoidable. Chism v. People, 80 P.3d 293 (Colo. 2003).
The court's duty to fix the amount of restitution is not confined to sentences to probation but applies equally to sentences to imprisonment. People v. Johnson, 780 P.2d 504 (Colo. 1989).
Court agreed with defendant's construction that "conviction" referenced in subsection (2)(a.5) refers to defendant's guilty plea, not the subsequent revocation of defendant's deferred judgment and sentence. Therefore, other felony convictions that occurred before the revocation cannot be considered "prior" felonies under this section, thus allowing probation to be an option. People v. Kiniston, 262 P.3d 942 (Colo. App. 2011).
Defendant who had two prior convictions at the time a third conviction was handed down was ineligible for probation. Defendant's argument that he had only one conviction at the time of commission of the underlying third crime must fail. This section clearly sets the cut-off point for determining the existence of prior convictions at the time of the third conviction. People v. Harvey, 819 P.2d 1087 (Colo. App. 1991).
If prosecution recommends waiver of the two-felony rule prior to sentencing, court may resentence defendant to probation after the revocation hearing without a second recommendation of prosecution to waive the two-felony rule. People v. Nance, 221 P.3d 428 (Colo. App. 2009).
Length of probation term not subject to statutes governing length of prison term. Imposition of prison term of six years is not controlling of length of probation term. People v. Martinez, 844 P.2d 1203 (Colo. App. 1992).
The court may impose a fine in lieu of incarceration or probation without the consent of the prosecutor where the defendant is convicted of a class 2 felony not involving violence or an assault on a firefighter or a peace officer. People v. Thompson, 897 P.2d 857 (Colo. App. 1994).
Applied in People v. Bartsch, 37 Colo. App. 52, 543 P.2d 1273 (1975); People v. Crandall, 37 Colo. App. 220, 544 P.2d 411 (1975); People v. Turner, 644 P.2d 951 (Colo. 1982).