Prior Felony Convictions In Colorado – Applications For Probation §18-1.3-201
By Colorado Criminal Defense Lawyer -For Colorado Felony Criminal Sentencing Issues – H. Michael Steinberg
Introduction – Understanding Colorado Sentencing Laws sometimes requires you to study the laws sometimes – called “parsing” a statute – the law. An example is what is known as” the Two Felony Rule” – is below. In applying for probation with a criminal history – you must understand the limitations placed on the Judge and the power given to the Colorado District Attorney by the Colorado State Legislature to prevent a sentencing judge from approving probation.
This Article – Web Page does that for you:
§ 18-1.3-201. Application for probation
(1)(a) A person who has been convicted of an offense, other than a class 1 felony or a class 2 petty offense, is eligible to apply to the court for probation.
HMS – This means that only Class 3, 4, 5 and 6 Felonies can APPLY for probation.
(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.
HMS – This is the law for the sentencing of persons for felonies committed 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.
HMS: Known as the old “Two Felony Rule” – Colorado applicants for probation may NOT receive probation if they have two felony convictions.. Period.
(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.
HMS: This is another rule – if the applicant has a prior felony WITHIN TEN YEARS of a class 1, 2, or 3 felony – they also are NOT 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.
HMS: The Kicker – this provision gives the DA – the prosecutor authority to WAIVE the application of the law IF s/he wants to do so. The judge must still agree.
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(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.
HMS: Now we switch to the PRESENT LAW:
This section applies to sentencing for felonies after May 25, 2010:
(b) Except as described in paragraph (a) of subsection (4) 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 his or her application is based shall not be eligible for probation if the current conviction or a prior conviction is for:
HMS: This is a new version of the new TWO FELONY RULE – here – if the applicant for probation has two or more prior felony convictions – AND s/he is being sentenced for the following crimes..THEN – s/he cannot receive probation.
Here are the felonies:
(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 18-4-303;
(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 a class 1 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.
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(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.