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- Colorado Probation Violation Hearings – Not The Same Rights As A Trial
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- A Colorado Probation Violation Guide To Intelligently Defending Probation Violations
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Colorado Probation Violation Law – Impact Of A Suspended Sentence
By H. Michael Steinberg Colorado Probation Violation Criminal Defense Lawyer
Colorado Probation Violation Law – Impact Of A Suspended Sentence – While not well understood by those sentenced in Colorado criminal cases, If a Colorado Judge suspends a sentence to jail or prison based on the successful completion of the conditions of probation, that Colorado Judge and any subsequent Judge assigned to the case is NOT required to imposed the suspended sentence when a violation of probation occurs.
While it is not often discussed in Court, and it is always assumed by the players in a case, a Defendant must apply for, and voluntarily “accept” probation, as well as all of the conditions of probation set out by the Trial Judge at the time of sentencing. This includes the right of probation to add conditions when they feel it necessary. However it is worth noting here that a Defendant always has the right to challenge additional conditions not originally imposed by the Judge.
When You Are Facing A Colorado Probation Violation
A Colorado VIOLATION OF PROBATION may occur when any condition of that probation is violated. Probation takes many forms, the simplest form called “straight probation,” the “deferred judgement and sentence”, unsupervised probation, or so called “suspended sentence” probation.
Whether jail or prison is imposed will often turn on the Defendant’s prior criminal history, the prior track record of the Defendant while on probation, and whether the probation sentence had, as a condition, a suspended sentence.
The only limitation on the conditions of probation that are imposed on Judges are that those conditions of probation must be “reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist the defendant in doing so.”
The conditions of probation set by Judges can be and often are as varied as the cases themselves and the sentence for a violation of probation, whether that be for a technical violation (e.g. for not performing public service hours) or for the commission of a new crime, is wide open to the Court.
Is A Judge “Bound” By That (Or Another Judge’s) Suspended Jail Or Prison Sentence Where There Has Been A Violation Of Probation?
Here is the issue: if a Defendant sentenced to probation with a suspended jail or prison sentence has that probation revoked, is the sentencing Court required to “execute” the previously suspended sentence?
The short answer is NO.
There is little dispute that one of the strongest psychological impacts of a person sentenced to a suspended jail or prison sentence as a condition of probation in Colorado is the fear that a suspended jail sentence must be imposed when, and if, there is violation of probation. This is a potent incentive to the person unschooled in the criminal justice system and often is the chief motivation for success on probation.
However, the truth is this: while a Judge may feel morally bound to impose a suspended jail or prison sentence following a probation revocation, the Court may imposed ANY sentence that could have been imposed at the original sentencing; this remains the law EVEN IF the original sentencing Judge imposed a suspended sentence to jail or prions.
Sentencing For A Probation Violation
In Colorado, as of 2015, Sentencing, essentially “re-sentencing” for probation violations is governed by CRS 16-11-206
16-11-206. [Colorado] Revocation Hearing
〉 (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. C.R.S. § 16-11-206 (5)
While there are limitations on a Colorado Judge where a sentence is mandated by a certain specific law – such as a mandatory sentence for Colorado crimes of violence or a mandatory life sentence for certain sex crimes, the general rule for sentencing is found in Subsection 11 of Colorado’s primary sentencing law (which section reflects the same kind of language appearing in subsection (5) immediately above):
§ 18-1.3-401. Felonies classified – presumptive penalties
…
(11) When it shall appear to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be best served thereby, the court shall have the power to suspend the imposition or execution of sentence for such period and upon such terms and conditions as it may deem best; except that in no instance shall the court have the power to suspend a sentence to a term of incarceration when the defendant is sentenced pursuant to a sentencing provision that requires incarceration or imprisonment in the department of corrections, community corrections, or jail.
In no instance shall a sentence be suspended if the defendant is ineligible for probation pursuant to section 18-1.3-201, except upon an express waiver being made by the sentencing court regarding a particular defendant upon recommendation of the district attorney and approval of such recommendation by an order of the sentencing court pursuant to section 18-1.3-201(4).
Summary and Conclusion: Colorado Probation Violation Law – Impact Of A Suspended Sentence
The two Colorado laws reprinted above are clear – A sentencing Court is NOT legally bound to impose or execute a suspended sentence once the defendant has violated a condition of the suspension and that Court has the authority at re-sentencing to impose ANY sentence that could have been imposed originally.
One important note: IF the violation of probation is based on the proven commission of a new crime, (which new offense must be proven beyond a reasonable doubt) a Defendant can be punished for BOTH the violation of probation crime and the new conviction and those sentences can run consecutively to one another (stacked) and this is not a violation of the constitutional prohibition against double jeopardy.
Colorado Probation Violation Law – Impact Of A Suspended Sentence
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Never stop fighting – never stop believing in yourself and your right to due process of law.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – 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 skilled Colorado lawyer will investigate all of the facts in your case and listen to your side of the story. The law is clear, a charge is not evidence of anything. Just because you are charged with a crime does not mean the State can prove a case against you beyond a reasonable doubt.
With an experienced Colorado criminal defense lawyer, there may be opportunities to expose flaws in the State’s case and have crucial evidence thrown out.
You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 40 plus years – H. Michael has mastered nearly every area of criminal law, procedure, trial and courtroom practice and he is passionate about getting you the best result in your case. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Probation Violation Law – Impact Of A Suspended Sentence.
Other Articles of Interest:
- Colorado Criminal Probation Law – What Exactly IS Probation?
- Non-Payment Of Restitution As A Basis For Probation Violation Under Colorado Law
- Bad News – A Colorado Deferred Judgment Is Not Technically A Probation Sentence
- Colorado’s Probation Violation Hearing Law – Analysis
- A Colorado Probation Violation Guide To Intelligently Defending Probation Violations
