COCODE

18-1.3-204. Conditions of probation - interstate compact probation transfer cash fund - creation.

Statute text

(1) (a) The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist the defendant in doing so. The court shall provide as explicit conditions of every sentence to probation that the defendant not commit another offense during the period for which the sentence remains subject to revocation, that the defendant make restitution pursuant to part 6 of this article and article 18.5 of title 16, C.R.S., that the defendant comply with any court orders regarding substance abuse testing and treatment issued pursuant to sections 18-1.3-209 and 18-1.3-211 and article 11.5 of title 16, C.R.S., and that the defendant comply with any court orders regarding the treatment of sex offenders issued pursuant to article 11.7 of title 16, C.R.S. The court shall provide as an explicit condition of every sentence to probation that the defendant not harass, molest, intimidate, retaliate against, or tamper with the victim of or any prosecution witnesses to the crime, unless the court makes written findings that such condition is not necessary.

(b) Notwithstanding the provisions of subsection (1)(a) of this section, unless the defendant is sentenced to probation for a conviction of a crime under article 10 of title 44, the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, shall not be considered another offense such that its use constitutes a violation of the terms of probation.

(c) Notwithstanding the provisions of subsection (1)(a) of this section, the possession or use of natural medicine or natural medicine product, as authorized pursuant to section 18-18-434, article 170 of title 12, or article 50 of title 44, must not be considered another offense such that its use constitutes a violation of the terms of probation.

(1.5) If the defendant is being sentenced to probation as a result of a conviction of a felony offense or a qualifying misdemeanor offense pursuant to the "Interstate Compact for Adult Offender Supervision", part 28 of article 60 of title 24, C.R.S., a condition of probation shall be that the court shall require the defendant to execute or subscribe a written prior waiver of extradition stating that the defendant consents to extradition to this state and waives all formal proceedings in the event that he or she is arrested in another state while at liberty on such bail bond and acknowledging that he or she shall not be admitted to bail in any other state pending extradition to this state. If the offender is returned to the state pursuant to the "Interstate Compact for Adult Offender Supervision", part 28 of article 60 of title 24, C.R.S., a court may not impose the cost of the offender's return on the offender.

(2) (a) When granting probation, the court may, as a condition of probation, require that the defendant:

(I) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip the defendant for suitable employment;

(II) Undergo available medical or psychiatric treatment and remain in a specified institution if required for that purpose. In any case where inpatient psychiatric treatment is indicated, the court shall proceed in accordance with article 65 of title 27 and require the defendant to comply with the recommendation of the professional person in charge of the evaluation required pursuant to section 27-65-106.

(III) Attend or reside in a facility established for the instruction, recreation, or residence of persons on probation;

(III.5) Participate in restorative justice practices, as defined in section 18-1-901 (3)(o.5), if available in the jurisdiction, and the defendant is determined suitable by a designated restorative justice practices facilitator. If a defendant wants to participate in restorative justice practices, the defendant must make the request to the district attorney or the law enforcement agency administering the program and may not make the request to the victim. If requested by the defendant, district attorney, or law enforcement agency, a victim-offender conference may only be conducted after the victim is consulted by the district attorney and offered the opportunity to participate or submit a victim impact statement. If a victim elects not to attend, a victim offender conference may be held with a suitable victim surrogate or victim advocate, and the victim may submit a victim-impact statement. To be eligible for restorative justice practices, the defendant shall not have been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., a crime in which the underlying factual basis involves domestic violence, as defined in section 18-6-800.3 (1), stalking as defined in section 18-3-602, or violation of a protection order as defined in section 18-6-803.5. Any statements made during a restorative justice conference shall be confidential and shall not be used as a basis for charging or prosecuting the defendant unless the defendant commits a chargeable offense during the conference. Failure to complete the requirements arising from a restorative justice conference may be considered a violation of probation. Nothing in this subparagraph (III.5) shall be construed to require a victim to participate in restorative justice practices or a restorative justice victim-offender conference.

(IV) Support the defendant's dependents and meet other family responsibilities, including arranging and fulfilling a payment plan for current child support, child support arrearages, and child support debt due under a court or administrative order through any delegate child support enforcement unit that may have a child support case with the defendant;

(V) Pay reasonable costs of the court proceedings or costs of supervision of probation, or both. The probation supervision fee shall be fifty dollars per month for the length of ordered probation. Notwithstanding the amount specified in this subparagraph (V), the court may lower the costs of supervision of probation to an amount the defendant will be able to pay. The court shall fix the manner of performance for payment of the fee. If the defendant receives probation services from a private provider, the court shall order the defendant to pay the probation supervision fee directly to the provider. The fee shall be imposed for the length of ordered probation.

(VI) Pay any fines or fees imposed by the court;

(VI.5) Repay all or part of any reward paid by a crime stopper organization that led to the defendant's arrest and conviction in accordance with article 15.7 of title 16, C.R.S.;

(VII) Refrain from possessing a firearm, destructive device, or other dangerous weapon unless granted written permission by the court or probation officer;

(VIII) Refrain from excessive use of alcohol or any unlawful use of controlled substances, as defined in section 18-18-102 (5), or of any other dangerous or abusable drug without a prescription; except that the court shall not, as a condition of probation, prohibit the possession or use of natural medicine or natural medicine product, as authorized pursuant to section 18-18-434, article 170 of title 12, or article 50 of title 44. Furthermore, the court shall not, as a condition of probation, prohibit the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, unless:

(A) The defendant is sentenced to probation for conviction of a crime under article 10 of title 44; or

(B) The court determines, based on any material evidence, that a prohibition against the possession or use of medical marijuana is necessary and appropriate to accomplish the goals of sentencing as stated in section 18-1-102.5;

(IX) Report to a probation officer at reasonable times as directed by the court or the probation officer;

(X) Permit the probation officer to visit the defendant at reasonable times at the defendant's home and elsewhere;

(XI) Remain within the jurisdiction of the court, unless granted permission to leave by the court or the probation officer;

(XII) Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment;

(XIII) Be subject to home detention as defined in section 18-1.3-106 (1.1);

(XIV) Be restrained from contact with the victim or the victim's family members in cases in which the defendant was 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);

(XIV.5) Be subject to electronic or global position monitoring;

(XV) Satisfy any other conditions reasonably related to the defendant's rehabilitation and the purposes of probation.

(b) When granting probation, in addition to the consideration of the provisions set forth in paragraph (a) of this subsection (2), the court shall order as a condition of probation in cases in which the defendant was 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), that the defendant:

(I) Comply with existing court orders regarding family support;

(II) Comply with any existing court orders concerning a proceeding to determine paternity, custody, the allocation of decision-making responsibility, parenting time, or support;

(III) Comply with the terms of any protection order in effect against the defendant during the probation period;

(IV) Refrain from possessing a firearm, destructive device, or other dangerous weapon, unless granted written permission by the court or probation officer which shall not be granted in such domestic violence cases unless:

(A) It is required by the defendant's employment; and

(B) The court finds that the defendant's possession of the weapon does not endanger the victim or the victim's children; and

(c) If the court orders counseling or treatment as a condition of probation, unless the court makes a specific finding that treatment in another facility or with another person is warranted, the court shall order that the treatment or counseling be at a facility or with a person:

(I) Approved by the behavioral health administration in the department of human services if the treatment is for alcohol or drug abuse;

(II) Certified or approved by the sex offender management board, established in section 16-11.7-103, C.R.S., if the offender is a sex offender;

(III) Certified or approved by the domestic violence offender management board created in section 16-11.8-103, C.R.S., if the offender was convicted of or the underlying factual basis of the offense included an act of domestic violence as defined in section 18-6-800.3; or

(IV) Licensed or certified by the division of adult parole in the department of corrections, the department of regulatory agencies, the behavioral health administration in the department of human services, the state board of nursing, or the Colorado medical board, whichever is appropriate for the required treatment or counseling.

(d) Notwithstanding the provisions of paragraph (c) of this subsection (2), if the court orders counseling or treatment as a condition of probation for an offender convicted of an offense involving unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S., the court shall order such treatment or counseling be at a facility or with a person listed in paragraph (c) of this subsection (2), and the court may not make a specific finding that treatment in another facility or with another person is warranted.

(e) If the defendant is convicted of an offense that subjects the defendant to genetic testing pursuant to section 16-11-102.4, C.R.S., the court shall assess to the defendant the cost of collecting and testing a biological substance sample from the defendant as required in section 16-11-102.4, C.R.S.

(2.2) When granting probation, the court may include as a condition of probation a requirement that the defendant participate in drug treatment. If the defendant's assessed treatment need is for residential treatment, the court may make residential drug treatment a condition of probation and may place the offender in a community corrections program that can provide the appropriate level of treatment subject to the provision of section 18-1.3-301 (4).

(2.3) (a) When granting probation, the court may, as a condition of probation, require any defendant who is less than eighteen years of age at the time of sentencing to attend school or an educational program or to work toward the attainment of a high school diploma or the successful completion of a high school equivalency examination, as that term is defined in section 22-33-102 (8.5), C.R.S.; except that the court shall not require any such juvenile to attend a school from which he or she has been expelled without the prior approval of that school's local board of education.

(b) Following specification of the terms and conditions of probation for a defendant who is less than eighteen years of age at the time of sentencing, where the conditions of probation include the requirement that the defendant attend school, the court shall notify the school district in which the defendant will be enrolled of such requirement.

(2.5) The order of priority for any payments required of a defendant pursuant to subparagraph (IV), (V), (VI), or (VI.5) of paragraph (a) of subsection (2) of this section shall be as follows:

(a) Payment of a current child support order;

(b) Payment of child support arrearage;

(d) Payment of spousal maintenance;

(e) Payment of costs for the crime victim compensation fund, pursuant to section 24-4.1-119, C.R.S.;

(f) Payment of surcharges for the victims and witnesses assistance and law enforcement fund, pursuant to section 24-4.2-104, C.R.S.;

(g) Payment of restitution;

(h) Payment of a time payment fee;

(i) Payment of late fees;

(i.2) Payment of probation supervision fees;

(i.4) Payment of a drug offender surcharge pursuant to article 19 of this title;

(i.6) Payment of a sex offender surcharge pursuant to article 21 of this title;

(i.7) Payment of a surcharge for a crime against an at-risk person pursuant to section 18-6.5-107;

(i.8) Payment of collection and chemical testing of a biological substance to determine the genetic markers thereof;

(i.9) Payment of a surcharge related to the address confidentiality program pursuant to section 24-30-2114, C.R.S.;

(j) Payment of any other fines, fees, or surcharges; and

(k) Repayment of all or part of any reward paid by a crime stopper organization that led to the defendant's arrest and conviction.

(3) When a defendant is granted probation, he or she shall be given a written statement explicitly setting forth the conditions on which he or she is being released.

(4) (a) For good cause shown and after notice to the defendant, the district attorney, and the probation officer, and after a hearing if the defendant or the district attorney requests it, the judge may reduce or increase the term of probation or alter the conditions or impose new conditions.

(b) (I) If an offender applies to transfer his or her probation to another state, the offender shall pay a filing fee of one hundred dollars, unless the offender is indigent.

(II) (A) The clerk of the court shall transmit all moneys collected pursuant to this paragraph (b) to the state treasurer, who shall credit the same to the interstate compact probation transfer cash fund, which fund is hereby created and referred to in this paragraph (b) as the "fund". Beginning January 1, 2013, the moneys in the fund are subject to annual appropriation by the general assembly to the judicial department for the direct and indirect costs associated with returning probationers to Colorado. The state treasurer may invest any moneys in the fund not expended for the purpose of this paragraph (b) as provided by law. The state treasurer shall credit all interest and income derived from the investment and deposit of moneys in the fund to the fund. Any unexpended and unencumbered moneys remaining in the fund at the end of a fiscal year remain in the fund and shall not be credited or transferred to the general fund or another fund.

(B) On or after January 1, 2013, a law enforcement agency may submit to the state court administrator a request to be reimbursed for the costs of returning a probationer pursuant to the "Interstate Compact for Adult Offender Supervision", part 28 of article 60 of title 24, C.R.S., incurred on or after January 1, 2013. The state court administrator shall, to the extent that funds are available, reimburse reasonable costs incurred by a law enforcement agency for the return of the probationer.

History

Source: L. 2002: Entire article added with relocations, p. 1378, 2, effective October 1. L. 2003: (2)(a)(V) amended, p. 2016, 116, effective May 22; (2)(b)(III) amended, p. 1014, 21, effective July 1. L. 2006: (2)(a)(XIV.5) added, p. 19, 3, effective March 8; (1.5) added, p. 342, 4, effective July 1; (2)(e) amended p. 1690, 9, effective July 1, 2007. L. 2007: (2.5)(i.9) added, p. 1700, 3, effective July 1. L. 2008: (2)(c)(III) and (2.5)(e) amended, p. 1889, 52, effective August 5. L. 2010: (2)(a)(II) and (2)(c)(I) amended, (SB 10-175), ch. 188, p. 785, 28, effective April 29; (2)(c)(IV) amended, (HB 10-1260), ch. 403, p. 1987, 77, effective July 1. L. 2011: (2.5)(i.9) amended, (HB 11-1080), ch. 256, p. 1123, 6, effective June 2; (2)(a)(III.5) added, (HB 11-1032), ch. 296, p. 1403, 8, effective August 10; (2)(c)(IV) amended, (HB 11-1303), ch. 264, p. 1157, 32, effective August 10. L. 2012: (2.3)(a) amended, (HB 12-1345), ch. 188, p. 748, 37, effective May 19; (1.5) and (4) amended, (HB 12-1310), ch. 268, p. 1396, 13, effective June 7; (2)(a)(VIII) amended, ch. 281, p. 1618, 37, effective July 1; (2.5)(i.7) added, (HB 12-1226), ch. 279, p. 1489, 3, effective August 15. L. 2013: (2)(a)(III.5) amended, (HB 13-1254), ch. 341, p. 1981, 2, effective August 7; (2.2) added, (SB 13-250), ch. 333, p. 1925, 33, effective October 1. L. 2014: (2.3)(a) amended, (SB 14-058), ch. 102, p. 379, 5, effective April 7. L. 2015: (1) and (2)(a)(VIII) amended, (HB 15-1267), ch. 168, p. 515, 1, effective May 8. L. 2016: (2.2) amended, (HB 16-1278), ch. 188, p. 664, 1, effective May 20; (2)(a)(VIII) amended, (HB 16-1359), ch. 349, p. 1420, 1, effective August 10. L. 2017: IP(2)(c), (2)(c)(I), and (2)(c)(IV) amended, (SB 17-242), ch. 263, p. 1254, 13, effective May 25. L. 2018: (1)(b) and (2)(a)(VIII)(A) amended, (HB 18-1023), ch. 55, p. 586, 12, effective October 1. L. 2019: (1)(b) and (2)(a)(VIII)(A) amended, (SB 19-224), ch. 315, p. 2937, 16, effective January 1, 2020. L. 2022: (2)(c)(I) and (2)(c)(IV) amended, (HB 22-1278), ch. 222, p. 1496, 25, effective July 1; (2)(a)(II) amended, (HB 22-1256), ch. 451, p. 3228, 26, effective August 10. L. 2023: (1)(c) added and IP(2)(a)(VIII) amended, (SB 23-290), ch. 249, p. 1419, 35, effective July 1.

Annotations

Editor's note: (1) This section is similar to former 16-11-204 as it existed prior to 2002.

(2) Section 45 of chapter 249 (SB 23-290), Session Laws of Colorado 2023, provides that the act changing this section applies to offenses committed on or after July 1, 2023.

Annotations

Cross references: (1) For the legislative declaration contained in the 2007 act adding subsection (2.5)(i.9), see section 4 of chapter 385, Session Laws of Colorado 2007. For the legislative declaration in the 2012 act amending subsection (2.3)(a), see section 21 of chapter 188, Session Laws of Colorado 2012. However, section 21 of chapter 188 was repealed by section 7 of chapter 323 (HB 15-1273), Session Laws of Colorado 2015.

(2) For the legislative declaration stating the purpose of and the provision directing legislative staff agencies to conduct a post-enactment review pursuant to 2-2-1201 scheduled in 2016, see sections 21 and 46 of chapter 188, Session Laws of Colorado 2012. However, sections 21 and 46 of chapter 188 were repealed by sections 7 and 8 of chapter 323 (HB 15-1273), Session Laws of Colorado 2015.

(3) For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.

Annotations

ANNOTATION

Annotations

Law reviews. For article, "The Problem of Compelling Fathers to Support their Dependent Children", see 27 Dicta 442 (1950). For article, "New Legislation Concerning the Mentally Disabled", see 11 Colo. Law. 2131 (1982). For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with extension of probation, see 62 Den. U.L. Rev. 187 (1985). For article, "When May a Probation Condition Allowing Use of Medical Marijuana Violate the Code of Judicial Conduct? Judicial Respect for the Law and Promoting Public Confidence in the Judiciary", see 89 Denv. U.L. Rev. 1017 (2012).

Annotator's note. Since 18-1.3-204 is similar to 16-11-204 as it existed prior to the 2002 relocation of certain criminal sentencing provisions and repealed 39-16-6 and 39-16-7, C.R.S. 1963, and 39-16-6 and 39-16-7, CRS 53, relevant cases construing those provisions have been included in the annotations to this section.

The purpose of probation is educational and reconstructive rather than primarily punitive or oppressive. Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958); People v. Ledford, 173 Colo. 194, 477 P.2d 374 (1970).

The basic purpose of probation is to provide a program which offers an offender the opportunity to rehabilitate himself without confinement, under the tutelage of a probation officer and under the continuing power of the court to impose a sentence for the original offense. People v. Ledford, 173 Colo. 194, 477 P.2d 374 (1970).

By its very nature and definition, probation means and signifies liberty under certain imposed conditions. People v. Ledford, 173 Colo. 194, 477 P.2d 374 (1970).

Probationary conditions serve the dual purpose of enhancing the reintegration of the offender into a responsible life style and affording society a measure of protection against recidivism. People v. Ressin, 620 P.2d 717 (Colo. 1980).

Void for vagueness doctrine applies to conditions of probation. Court will apply the same constitutional standards to conditions of probation as to statutes. There was nothing vague in the requirement that defendant actively participate and successfully complete treatment to the satisfaction of the probation officer and treatment provider. People v. Firth, 205 P.3d 445 (Colo. App. 2008).

Surrounding circumstances of defendant's alien status may be relevant to a sentencing court's decision whether to grant or deny probation. Although consideration of defendant's status as a foreign national, in and of itself, is improper, the fact that defendant is in the United States illegally may, under certain circumstances, provide substantial and compelling reasons to depart from sentencing guidelines and deny probation. People v. Hernandez-Clavel, 186 P.3d 96 (Colo. App. 2008).

Trial courts have a wide discretion in imposing certain conditions upon a probationer. People v. Ledford, 173 Colo. 194, 477 P.2d 374 (1970).

Psychosexual evaluation may be required as a condition of probation. Defendant charged with attempted first degree sexual assault who pleads guilty to the lesser offense of third degree misdemeanor assault may be required to undergo a psychosexual evaluation as a condition of probation. People v. Fleming, 3 P.2d 449 (Colo. App. 1999).

A court may impose a variety of monetary conditions in connection with granting probation, including a requirement to make a charitable contribution. People v. Burleigh, 727 P.2d 873 (Colo. App. 1986).

Probation supervision fee need not be refunded. Unlike fines and surcharges, which are primarily punitive in nature, probation supervision fees are part of the rehabilitative process, from which a defendant benefits. People v. Noel, 134 P.3d 484 (Colo. App. 2005).

The trial court's power to revoke an individual's probation for failure to pay restitution does not extend beyond the expiration of the probation term imposed. The restitution statute cannot be read as automatically extending a probation term for collection of restitution checks. People v. Gore, 774 P.2d 877 (Colo. 1989).

Clear purpose of subsection (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 subsection (3) did not require reversal of revocation in and of itself. People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980).

Parole revocation order must be reversed because defendant did not receive written or actual notice of the condition of probation that he was alleged to have violated. People v. Calderon, 2014 COA 144, 356 P.3d 993.

Noncompliance with subsection (4), by failing to provide defendant notice of changes in probation conditions, is improper. People v. Frye, 997 P.2d 1223 (Colo. App. 1999).

The provisions of subsection (4)(a) do not give the court the discretion to terminate a sex offender's indeterminate probation prior to the offender's completion of the statutory minimum period of probation. People v. Dinkel, 2013 COA 19, 321 P.3d 569.

Subsection (4)(a) is not applicable to the resentencing of an offender terminated from community corrections. A resentencing on a termination from community corrections is analogous to resentencing on a probation revocation. People v. Reyes, 2016 COA 98, 409 P.3d 501.

The terms of probation must be derived from this section, as probation is purely a statutory creation. People v. Ledford, 173 Colo. 194, 477 P.2d 374 (1970).

The program of probation should envisage only such terms and conditions as are clearly and specifically spelled out in the statutes, and such other conditions as fit the probationer by education and rehabilitation to take his place in society. Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958); People v. Ledford, 173 Colo. 194, 477 P.2d 374 (1970).

If an applicant is worthy, his release on probation should not be weighted with terms and conditions having nothing to do with the purpose and policy of probation laws. Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958).

Condition of making charitable contribution was reasonably related to defendant's rehabilitation and to general purposes of probation. People v. Burleigh, 727 P.2d 873 (Colo. App. 1986).

Conditions of probation may impinge on defendant's constitutional right to freedom of association when those conditions bear a reasonable relationship to the goals of probation. Trial court was within its discretion in imposing conditions that prohibited defendant, convicted of second degree assault on a client by a psychotherapist, not only from continuing to practice as a psychotherapist, but also from engaging in any type of counseling of at-risk persons or contacting former psychotherapy clients. People v. Bolt, 984 P.2d 1181 (Colo. App. 1999).

Condition of probation imposed by probation officer that limited defendant's discussion in therapy, when defendant was not a therapist or a psychologist licensed to ascertain the appropriate subject matter for sex offender treatment, was not reasonably related to defendant's rehabilitation. People v. Harmon, 3 P.3d 480 (Colo. App. 2000).

The absence of an authorizing law or condition of probation does not necessarily render unconstitutional a warrantless search of a probationer's residence if based on a reasonable suspicion. The totality of all other relevant circumstances may render such a search reasonable. The defendant's status as a probationer on intensive supervised probation greatly reduced his reasonable expectation of privacy in his residence, and, combined with the other circumstances of the situation, justified the search by his probation officer. People v. Samuels, 228 P.3d 229 (Colo. App. 2009).

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).

A court may require a defendant to make restitution or reparation to the victim of his transgression, and to pay court costs and expenses of supervision by the probation office. Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958).

Defendant must have ability to pay restitution. The reason for requiring that ability to pay restitution be established before probation can be revoked is to allow revocation only where the probationer unreasonably or willfully fails to comply with the terms of his probation, because before revocation of probation for failure to make ordered restitution payments can be effected, the trial court must find that the defendant had the ability to pay at the time the payments should have been made. Strickland v. People, 197 Colo. 488, 594 P.2d 578 (1979).

Before revoking probation the court must make a finding of present ability to pay under subsection (2)(e). People v. Romero, 192 Colo. 106, 559 P.2d 1101 (1976); Strickland v. People, 197 Colo. 488, 594 P.2d 578 (1979).

It is required that one have the present ability to pay which contemplates that: (1) A job for which the probationer is qualified is available; (2) the job would produce an income adequate to meet his obligations; and (3) the probationer unjustifiably refuses to take it. People v. Romero, 192 Colo. 106, 559 P.2d 1101 (1976); Strickland v. People, 197 Colo. 488, 594 P.2d 578 (1979).

Absent such finding, probation to be reinstated. If the court finds that the defendant did not have the ability to pay at the time of the revocation hearing, it shall reinstate defendant's probation. People v. Romero, 196 Colo. 102, 559 P.2d 1101 (1976).

Court may require defendant to make child support payments. People v. Silcott, 177 Colo. 451, 494 P.2d 835 (1972).

But may not require posting of appearance bond. Nothing in the statutory law on probation expressly or implicitly clothes a trial court with the discretionary power to require the posting of an appearance bond as a condition of probation. Whether a prisoner is worthy of probation should not hinge on his ability to furnish a bond. To permit a court to require such a bond as a condition of probation would enlarge the punitive powers of a court beyond that contemplated by the laws of this state. Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958).

When a probationer defends against an alleged violation of a nonpayment condition of probation based on a lack of financial means, the trial court cannot revoke probation and impose imprisonment without first determining whether the probationer failed to comply with probation willfully or failed to make sufficient bona fide efforts to acquire resources to comply with probation. Sharrow v. People, 2019 CO 25, 438 P.3d 730.

Probation cannot be contingent upon partial service of sentence in penitentiary. Since this section does not include a provision for service of a portion of a sentence in the state penitentiary as a condition of probation, a court is not free to impose as a condition of probation any period of incarceration in the state penitentiary nor may any period of incarceration in a county jail exceed the prescribed time limits. People ex rel. Gallagher v. District Court, 197 Colo. 481, 593 P.2d 1372 (1979).

The court may not change the conditions of probation, including the payment of restitution, without notice and an opportunity for a hearing. People v. Stephenson, 12 P.3d 266 (Colo. App. 1999).

Court cannot order as a condition of probation that a qualified retirement plan be liquidated to pay restitution. People v. Stephenson, 12 P.3d 266 (Colo. App. 1999).

To read this section harmoniously with 16-11-206, the proper standard of proof is a preponderance of the evidence when it is alleged that a condition of probation has been breached, even though the breaching conduct also may have constituted a criminal offense. People v. Moses, 64 P.3d 904 (Colo. App. 2002).

The costs of probation supervision assessed against the defendant should be for the period actually served before revocation, and not based on the probationary period originally imposed. People v. Howell, 64 P.3d 894 (Colo. App. 2002).

Where supervisory period extended by defendant's request. Although this section requires notice, a hearing, and a showing of good cause before a supervisory period is increased, the provisions of this section in this respect are not applicable when an extension of the period of supervision is granted at the defendant's own request. People v. Blackorby, 41 Colo. App. 251, 583 P.2d 949 (1978).

When a defendant agrees to an extension of probation, the defendant does not have a due process right to be advised of or receive the right to counsel before signing the extension. People v. Hotle, 216 P.3d 68 (Colo. App. 2008).

When a defendant agrees to an extension of probation, the defendant does not have a sixth amendment right to be advised of or receive the right to counsel before signing the extension. A motion to extend probation is not a critical stage of the proceeding requiring the right to counsel because the defendant is not faced with a consequential significant deprivation of liberty and is not entitled to a hearing in the absence of such a request. People v. Hotle, 216 P.3d 68 (Colo. App. 2008).

When a defendant agrees to an extension of probation, the statutory provisions concerning notice, a hearing, and a showing of good cause are not applicable. People v. Hotle, 216 P.3d 68 (Colo. App. 2008).

Where defendant consents to an extension of the period of probation, there is no requirement for a hearing or other proceeding designed to assure that defendant is making a knowing and voluntary decision. The due process protections afforded in a probation revocation hearing do not apply to an extension of probation. People v. Conner, 148 P.3d 235 (Colo. App. 2006).

Trial court did not lose jurisdiction over defendant's case when it did not enter the order extending defendant's probation until one day after defendant's probation term had ended. The procedures to extend defendant's probationary period were initiated before defendant's probationary term ended, which included the filing of a motion with the court that satisfied the requirements of subsection (4) while defendant was still on probation. People v. Romero, 198 P.3d 1209 (Colo. App. 2007).

No presentence confinement credit for time spent in halfway house. Where residency in a community corrections facility is imposed as a condition of probation, it does not involve confinement as contemplated by 16-11-306; thus no presentence confinement credit may be given for time spent at a community corrections halfway house. People v. Radar, 652 P.2d 1085 (Colo. App. 1982).

Condition that probationer not impose his religious beliefs on other people while performing public service during probationary period is neither necessary to ensure that the defendant lead a law-abiding life, nor does it enhance the probationer's rehabilitation. People v. Lybarger, 790 P.2d 855 (Colo. App. 1989), rev'd on other grounds, 807 P.2d 570 (Colo. 1991).

The trial court has broad discretion in setting the terms and conditions of restitution orders, and it did not abuse its discretion in ordering that restitution include the amount paid by the victim in reward money. The court found that payment of the reward was reasonable under the circumstances and would not have occurred but for the defendant's actions. The fact that the victim had no legal obligation to offer a reward and may not have been contractually bound to pay the award was immaterial. People v. Dillingham, 881 P.2d 440 (Colo. App. 1994).

To determine whether a specific geographic restriction is reasonably related to the statutory purposes of probation, the following factors should be considered: (1) Whether the restriction is reasonably related to the underlying offense; (2) whether the restriction is punitive to the point of being unrelated to rehabilitation; (3) whether the restriction is unduly severe and restrictive because the defendant resides in the area and is forced to relocate or is employed or anticipates employment in the area; (4) whether the defendant may petition the court to lift the restriction temporarily when necessary; and (5) whether less restrictive means are available. People v. Brockelman, 933 P.2d 1315 (Colo. 1997).

These factors are not exhaustive but are helpful tools which, at a minimum, should form a basis to guide trial courts in imposing a geographic restriction as a condition of probation. People v. Brockelman, 933 P.2d 1315 (Colo. 1997).

Factors applied and a nexus found to exist between the underlying offense and the probation condition imposed. People v. Brockelman, 933 P.2d 1315 (Colo. 1997); People v. Bolt, 984 P.2d 1181 (Colo. App. 1999).

At least in situations where the need for familial association restrictions is not self-evident, probation conditions that infringe on a defendant's fundamental constitutional rights must be supported by a specific finding that (1) compelling circumstances require their imposition and (2) less restrictive means are not available. People v. Cooley, 2020 COA 101, 469 P.3d 1219.

"Compelling circumstances" requirement under People v. Cooley, 2020 COA 101, 469 P.3d 1219, does not imply a right to live with family members without regard to the nature of the relationship. People v. Salah, 2022 COA 134M-2, __ P.3d __.

The court's order restricting defendant's access to the internet and social media as a part of the defendant's sentence to sex offender intensive supervision probation was reasonably related to the defendant's rehabilitation and the purposes of probation. In determining whether the conditions are reasonably related to the defendant's rehabilitation and purposes of probation, the court must consider (1) whether the conditions are reasonably related to the underlying offense; (2) whether the conditions are punitive to the point of being unrelated to rehabilitation; (3) whether the conditions are unduly severe and restrictive; (4) whether the defendant may petition the court to lift the conditions temporarily when necessary; and (5) whether less restrictive means are available. Since the defendant's victim was a child, it was reasonable to limit access to the internet and social media since those mediums provide easy means to contact other children. The defendant has the opportunity to earn access to those mediums during the probation sentence. People v. Landis, 2021 COA 92, 497 P.3d 39.

A district court may, as a condition of probation, prohibit a defendant from having unsupervised contact with his or her children. The court properly considered defendant's parenting history, the severity of her offense, and the necessity to assist her in leading a law-abiding life while affording society and her young children a measure of protection against recidivism. People v. Forsythe, 43 P.3d 652 (Colo. App. 2001).

Trial court had the authority under former 16-11-204 (4) and 17-27-105 (1)(h) (now 18-1.3-204 (4) and 18-1.3-301 (1)(h)) to modify defendant's community corrections sentence before it expired. The court retained this authority after defendant's release date passed because re-sentencing proceedings were initiated prior to that date. People v. Knott, 83 P.3d 1147 (Colo. App. 2003).

Not plain error to impose probation conditions that prohibit sex offender who victimized children from having sexual contact with adults without prior approval and from possessing pornography. The probation conditions were not unconstitutionally overbroad or vague. People v. Lientz, 2012 COA 118, 317 P.3d 1215.

Possession or use of marijuana for medical purposes is an "offense" within the meaning of this section. For the purposes of subsection (1), "offense" includes violations of federal law, and federal law makes it unlawful for any person to knowingly or intentionally possess marijuana. People v. Watkins, 2012 COA 15, 282 P.3d 500.

The plain language of subsection(2)(a) creates a presumption that a defendant may use medical marijuana while on probation unless an exception applies. In order for a sentencing court to enter an order prohibiting a defendant from using medical marijuana as part of a sentence, it must do so based on material evidence that prohibiting the defendant's otherwise-authorized medical marijuana use is necessary and appropriate to promote statutory sentencing goals. It is error for the court to require the defendant to present evidence as to why the defendant should be allowed to use medical marijuana while on probation. Walton v. People, 2019 CO 95, 451 P.3d 1212.

A district court has no authority to collect the fee imposed pursuant to subsection (2)(a)(V) after the completion of a deferred sentence and dismissal of the underlying charges. Pineda-Liberato v. People, 2017 CO 95, 403 P.3d 160.

Trial court erred when it extended probation for good cause under subsection (4)(a) because defendant failed to pay the full amount of restitution. Otherwise, probation of an indigent defendant could be extended repeatedly and indefinitely simply because of the defendant's indigence. People v. Martinez, 2022 COA 142, __ P.3d __.