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You may need a Colorado Criminal Defense Lawyer experienced in defending Probation Violation Cases
Every defendant who is placed on probation, in a community corrections halfway house setting, or on a deferred judgment and sentence or deferred prosecution, rather than being sent to jail or to prison, must comply with certain conditions.
Probation is often part of a criminal defendant’s Colorado sentence. When probation is given, the individual is allowed to remain a member of the community after jail time (if any) has been successfully completed.
Colorado probation laws differ according to the type of probation given, such as:
Formal Probation (Supervised Probation)
Informal Probation (Summary Probation)
Formal Probation (or Supervised Probation) requires the defendant to meet with an assigned probation officer on a regular basis (usually once a month – sometimes less).
Informal Probation (or Un-Supervised Probation) requires the defendant to complete certain terms of the sentence and stay out of trouble. Scheduled meetings with a probation officer are not necessary under summary or informal probation.
The failure to comply with the conditions of probation may result in the filing of a complaint and a revocation proceeding. For direct sentences to community corrections, the Community Corrections Board determines whether a violation has occurred and whether to reject the defendant from the program. For sentences to probation or for deferred sentences, the court determines whether a violation has occurred.
A revocation proceeding begins when a probation officer or other person supervising the sentence, a prosecutor, or a court official develops reason to believe that an individual is not complying with the conditions of the sentence.
A complaint alleging a violation of the deferred sentence, probation, or community corrections sentence is filed with the court. The Court may issue an arrest warrant or send a notice to the defendant ordering him or her to appear in court and answer this complaint. If the defendant fails to appear in response to this summons, an arrest warrant will be issued.
At the first appearance for violations of a deferred sentence or of probation, the defendant is advised of his or her rights and may either admit or deny the complaint.
If the defendant admits the complaint, the judge will listen to the parties. If the defendant was on a deferred sentence, the court must enter judgment of conviction based on the original guilty plea and imposes any authorized sentence.
If the person was on probation, the judge can continue the probation or revoke it and impose any sentence that the judge could have originally imposed.
If the defendant was sentence directly to community corrections, the judge may re-sentence the defendant without any further hearing as long as the length of the new sentence does not exceed the length of the original sentence.
If the defendant denies the complaint on violations of probation or deferred sentences, the court sets a hearing. At the hearing, the prosecution must prove the allegations in the complaint to the satisfaction of the judge. While the probationer has the right to be represented by counsel, revocation proceedings are much more informal.
The rules of evidence are relaxed and the burden of proof is generally lower than at a trial. If the court is satisfied that probation has been violated, the court may continue the probation or revoke the probation and impose any authorized sentence. If the court is not satisfied that probation has been violated, the court will place the defendant back on probation subject to the original terms and conditions
As soon as a probation violation occurs, an arrest may follow shortly thereafter and/or the defendant may be ordered to court for a probation violation hearing. During the court hearing, the Prosecutor must prove the violation by more than 50% ( a preponderance) of the evidence, as opposed to ‘beyond a reasonable doubt’ which is necessary for a criminal trial.
The seriousness of the probation violation
The nature of the probation violation
The history of previous probation violations
New criminal activity surrounding the probation violation
Aggravating and mitigating circumstances of the probation violation
The probation officer and/or probation department’s view of the probation violation
The probation violation with respect to the probation term (whether it occurred at the beginning, middle, or end of the probationary term)
The judge has discretion on what punishment to impose, depending on the crime to which the defendant originally was found guilty, along with the nature of the probation violation. The judge may impose one of several punishments:
• Reinstate probation on the same terms and conditions
• Reinstate probation and impose new conditions
• County jail or state prison
• House arrest or electronic monitoring
• Time served (the defendant receives credit for the time in custody)
• Extend probation
• Drug rehabilitation)
• Public Service Hours -Community service
• Offender Counseling
• Drug / Alcohol or Other Treatment program.
With the exception of class 1 felonies – which carry a sentence of death or life in prison without parole – and class petty offenses – which carry a sentence of only a fine – the court can generally grant probation to anyone convicted of a crime. There are certain exceptions to this general rule.
A person with two prior felony convictions is not eligible for probation unless the prosecutor consents. A person who is convicted of certain types of serious offenses – generally, crimes of violence – may not be eligible for probation. But the vast majority of defendants who come in front of the court for sentencing are eligible for probation.
The legislature has set forth the criteria that a trial court should consider when deciding whether to grant or deny probation to a particular defendant. These criteria are set forth in ¤ 18-1.3-203 as follows:
(1) The court, subject to the provisions of this title, in its discretion may grant probation to a defendant unless, having regard to the nature and circumstances of the offense and to the history and character of the defendant, it is satisfied that imprisonment is the more appropriate sentence for the protection of the public because:
(a) There is undue risk that during a period of probation the defendant will commit another crime; or (b) The defendant is in need of correctional treatment that can most effectively be provided by a sentence to imprisonment as authorized by section 16-11-101; or
(c) A sentence to probation will unduly depreciate the seriousness of the defendant’s crime or undermine respect for law; or
(d) His past criminal record indicates that probation would fail to accomplish its intended purposes; or
(e) The crime, the facts surrounding it, or the defendant’s history and character when considered in relation to statewide sentencing practices relating to persons in circumstances substantially similar to those of the defendant do not justify the granting of probation.
(2) The following factors, or the converse thereof where appropriate, while not controlling the discretion of the court, shall be accorded weight in making determinations called for by subsection (1) of this section:
(a) The defendant’s criminal conduct neither caused nor threatened serious harm to another person or his property;
(b) The defendant did not plan or expect that his criminal conduct would cause or threaten serious harm to another person or his property;
(c) The defendant acted under strong provocation;
(d) There were substantial grounds which, though insufficient to establish a legal defense, tend to excuse or justify the defendant’s conduct;
(e) The victim of the defendant’s conduct induced or facilitated its commission;
(f) The defendant has made or will make restitution or reparation to the victim of his conduct for the damage or injury which was sustained;
(g) The defendant has no history of prior criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
(h) The defendant’s conduct was the result of circumstances unlikely to recur;
(i) The character, history, and attitudes of the defendant indicate that he is unlikely to commit another crime;
(j) The defendant is particularly likely to respond affirmatively to probationary treatment;
(k) The imprisonment of the defendant would entail undue hardship to himself or his dependents;
(l) The defendant is elderly or in poor health;
(m) The defendant did not abuse a public position of responsibility or trust;
(n) The defendant cooperated with law enforcement authorities by bringing other offenders to justice, or otherwise.
If the judge decides to grant probation, the judge can put a wide variety of conditions on that probation. Most importantly, it is always a condition of probation that the person not commit any new offenses. It is always a condition of probation that the defendant pay restitution for any damage he or she caused.
Depending on the seriousness of the offense, and the need for supervision of the conditions of probation, the judge can order that probation be either supervised or unsupervised. Supervision can be performed by either the probation department for the judicial district or by one of several private probation supervision providers who have contracted with the State of Colorado to perform this function.
In addition, the judge can impose a wide variety of other conditions that are aimed at ensuring that the defendant leads a law-abiding life. Among the conditions explicitly listed are requirements that the defendant 1) work or go to school, 2) participate in medical and/or psychiatric treatment, 3) pay costs, fines and fees, 4) refrain from the use of drugs, alcohol and/or weapons, 5) stay away from the victim and/or the victim’s family and 6) any other condition reasonably related to the defendant’s rehabilitation and the purposes of probation.
A judge also has the power to require a defendant to spend time in jail as a condition of probation. The amount of time is generally limited to 90 days in felony cases and 60 days in misdemeanor cases. If the defendant is allowed to participate in a work or education release program in the jail, the maximum amount of jail that may be imposed as a condition of probation is increase to two years.
Courts may the option of sentencing an individual to intensive supervision probation (ISP). ISP is designed for individuals who present a higher risk than the typical probation candidate, and/or individuals who have an unusually high number of conditions being placed upon their probation. Higher levels of supervision can include electronic monitoring to ensure that the defendant is at work or at home when required.
The Steinberg Colorado Criminal Defense Law Firm of H. Michael Steinberg – has successfully defended many Colorado defendants charged with probation violations from serious to non-serious. If you suspect that you violated your probation or have been charged with a probation violation, we may be able to minimize the penalties of your probation violation or avoid a probation violation altogether.
As your criminal defense attorney, I want to be prepared for the first court date related to your probation violation. I do not want any surprises. The sooner I have all the facts, the more effective I can be in preparing and defending your probation violation. H. Michael Steinberg