2021 Colorado Code
Title 18 - Criminal Code
Article 1.3 - Sentencing in Criminal Cases
Part 2 - Probation
§ 18-1.3-202. Probationary Power of Court

Universal Citation: CO Code § 18-1.3-202 (2021)

    1. When it appears 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 served thereby, the court may grant the defendant probation for such period and upon such terms and conditions as it deems best. The length of probation shall be subject to the discretion of the court and may exceed the maximum period of incarceration authorized for the classification of the offense of which the defendant is convicted but shall not exceed five years for any misdemeanor or petty offense. If the court chooses to grant the defendant probation, the order placing the defendant on probation shall take effect upon entry and, if any appeal is brought, shall remain in effect pending review by an appellate court unless the court grants a stay of probation pursuant to section 16-4-201. Unless an appeal is filed that raises a claim that probation was granted contrary to the provisions of this title, the trial court shall retain jurisdiction of the case for the purpose of adjudicating complaints filed against the defendant that allege a violation of the terms and conditions of probation. In addition to imposing other conditions, the court has the power to commit the defendant to any jail operated by the county or city and county in which the offense was committed during such time or for such intervals within the period of probation as the court determines. Except as described in subsection (1)(b) of this section, the aggregate length of any such commitment whether continuous or at designated intervals may not exceed ninety days for a felony, sixty days for a misdemeanor, or ten days for a petty offense unless it is a part of a work release program pursuant to section 18-1.3-207. That the defendant submit to commitment imposed under this section is deemed a condition of probation.
    2. For a defendant who is convicted of a felony offense described in section 42-4-1301 (1)(a), (1)(b), or (2)(a), the aggregate length of any commitment to a county jail is determined as provided in section 42-4-1307 (6.5)(b).
  1. The probation department in each judicial district may enter into agreements with any state agency or other public agency, any corporation, and any private agency or person to provide supervision or other services for defendants placed on probation by the court. The agreements shall not include management of any intensive supervision probation programs created pursuant to section 18-1.3-208.

History. Source: L. 2002: Entire article added with relocations, p. 1376, § 2, effective October 1. L. 2003: (1) amended, p. 976, § 13, effective April 17. L. 2013: (2) amended,(SB 13-250), ch. 333, p. 1942, § 68, effective October 1. L. 2017: (1) amended,(HB 17-1288), ch. 387, p. 2005, § 3, effective August 9.

Editor's note:

This section is similar to former § 16-11-202 as it existed prior to 2002.


Annotator's note. Since § 18-1.3-202 is similar to § 16-11-202 as it existed prior to the 2002 relocation of certain criminal sentencing provisions and repealed § 39-16-6 , C.R.S. 1963, relevant cases construing those provisions have been included in the annotations to this section.

No equal protection violation. This section and the work release statute, § 16-11-212 , establish general statutory probation dispositions for all defendants eligible for probation and do not create classifications resulting in disparate treatment. People v. Garberding, 787 P.2d 154 (Colo. 1990).

Probation is a creature of statute. People v. Ray, 192 Colo. 391 , 560 P.2d 74 (1977).

Probation is a privilege, not a right, and an order of probation may be revoked if a probationer violates any condition of probation. People v. Colabello, 948 P.2d 77 (Colo. App. 1997).

This section is similar to the original federal probation law. People v. Ledford, 173 Colo. 194 , 477 P.2d 374 (1970).

Probation is accorded only to a defendant who seeks it or is willing to accept it as a sentence. People v. Rollins, 771 P.2d 32 (Colo. App. 1989).

Subject to the requirement that any conditions imposed as terms of probation must be authorized by the general assembly, trial courts are given wide discretion in imposing conditions upon a sentence of probation. People v. Richards, 795 P.2d 1343 (Colo. 1990).

Court may not sentence a defendant to both imprisonment and probation in the same case. If the court determines that imprisonment is the more appropriate sentence, it may not impose a sentence to probation on a separate count in the same case. Allman v. People, 2019 CO 78, 451 P.3d 826.

Trial court has statutory authority to order that a sentence to probation be served consecutively to another sentence. People v. Trujillo, 261 P.3d 485 (Colo. App. 2010).

Subsection (1) does not preclude deferring commencement of a probationary sentence. People v. Trujillo, 261 P.3d 485 (Colo. App. 2010).

The trial court has the authority to order domestic violence treatment as a condition of defendant's probation without a jury finding that the defendant committed an “act of domestic violence”. Because the court had the authority to attach whatever conditions to probation the court deemed appropriate, the U.S. supreme court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), did not require a jury finding of an act of domestic violence before domestic violence treatment was ordered as a condition of probation. People v. Goldfuss, 98 P.3d 935 (Colo. App. 2004).

A trial court has jurisdiction to grant probation either by suspending imposition of sentence or suspending execution of the sentence. Coffey v. County Court, 177 Colo. 81 , 492 P.2d 839 (1972).

It acts upon probation report. The court acts pursuant to this section upon all data relating to the applicant for probation submitted to a court in the form of a written report. Logan v. People ex rel. Alamosa County, 138 Colo. 304 , 332 P.2d 897 (1958).

A trial court shall give careful consideration to the information supplied by the probation officer. Wolford v. People, 178 Colo. 203 , 496 P.2d 1011 (1972).

No automatic stay of probation order pending appeal. Under subsection (1), the trial court retains jurisdiction to modify and terminate probation during the pendency of an appeal unless a stay has been granted. People v. Widhalm, 991 P.2d 291 (Colo. App. 1999).

The broad grant of power under this section encompassed a deferred judgment procedure. People v. Ray, 192 Colo. 391 , 560 P.2d 74 (1977).

Each time a defendant is sentenced or resentenced to probation, the court may sentence the defendant to a commitment to jail for up to the maximum allowed by statute. People v. Gravina, 2013 COA 22 , 300 P.3d 990.

Inapplicable to delinquent child. The plain intendment of the Colorado Children's Code militates against the application of this section via § 16-11-210 to a delinquent child under the age of 18 years. People in Interest of A.F., 37 Colo. App. 185, 546 P.2d 972 (1975), aff'd, 192 Colo. 207 , 557 P.2d 418 (1976).

A juvenile court does not have the statutory authority to impose a limited or partial confinement in county jail as a condition of probation for a juvenile under 18 years of age. People v. A.F., 192 Colo. 207 , 557 P.2d 418 (1976).

Although this section does grant courts the authority to condition probation upon service of sentences in city or county jails, such conditions are clearly contravention of numerous expressions of legislative intent in the Colorado Children's Code. People v. A.F., 192 Colo. 207 , 557 P.2d 418 (1976).

This section applies to sex offender intensive supervision program (SOISP) sentences except where the language conflicts with more specific provisions contained in the statutes governing SOISP sentences. People v. Trujillo, 261 P.3d 485 (Colo. App. 2010).

Trial court had authority to direct that defendant's SOISP would commence consecutively at the end of his incarceration on another conviction. People v. Trujillo, 261 P.3d 485 (Colo. App. 2010).

Trial court had jurisdiction to grant probation. Coffey v. County Court, 177 Colo. 81 , 492 P.2d 839 (1972).

The maximum sentences in the presumptive ranges established in § 18-1-105 for imprisonment periods do not apply to probation periods to which a defendant may be sentenced. People v. Flenniken, 749 P.2d 395 (Colo. 1988).

The decision of the supreme court in People v. Flenniken will be given retroactive effect. People v. Cagle, 780 P.2d 13 (Colo. App. 1989).

The minimum sentences established in § 18-1-105 do not establish the minimum period of probation to which a defendant may be sentenced. The length of probation is at the sentencing judge's discretion. People v. Herr, 868 P.2d 1121 (Colo. App. 1993).

Probationary sentence is not illegal because it exceeds the maximum length authorized for a sentence to incarceration. People v. Salas, 42 P.3d 68 (Colo. App. 2001).

But the provisions of this section authorizing a court to grant “probation for such period and upon such terms and conditions as it deems best” does not give the court unlimited discretion to determine the probationary period. A trial court thus exceeds its authority if it sentences a defendant to a probationary term longer than the maximum sentence to incarceration allowed for a misdemeanor offense. People v. Benavidez, 58 P.3d 1142 (Colo. App. 2002).

A trial court may not impose a probationary term that is greater than the longest possible period of incarceration for the underlying misdemeanor. People v. Kennaugh, 80 P.3d 315 (Colo. 2003).

Court may impose an indeterminate term of probation that may exceed maximum range of incarceration for offense. The court's discretion to impose probation is not limited by statutory ranges governing sentences to incarceration. The court had authority to order indeterminate probation of ten years to life even though the maximum period of incarceration permitted for the crime was twelve years and the defendant could not properly be classified as a sex offender subject to lifetime supervision. People v. Jenkins, 2013 COA 76 , 305 P.3d 420.

The specific statutory provisions of § 42-4-1301 that contain a mandatory sentencing scheme for alcohol-related driving offenses and which provide for extended treatment of the underlying cause of the criminal conduct, prevail over the general provisions of this section. People v. Martinnillie, 940 P.2d 1090 (Colo. App. 1996).

Applied in People v. Sandoval, 36 Colo. App. 403, 541 P.2d 105 (1975); People v. Horton, 628 P.2d 117 (Colo. App. 1980); People v. Martinez, 657 P.2d 967 (Colo. App. 1982); People v. Trujillo, , 433 P.3d 78 .

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