2021 Colorado Code
Title 18 - Criminal Code
Article 8 - Offenses - Governmental Operations
Part 2 - Escape and Offenses Relating to Custody
§ 18-8-208.1. Attempt to Escape

1. Except as otherwise provided in subsection (1.5) of this section, if a person, while in custody or confinement following conviction of a felony, knowingly attempts to escape from said custody or confinement, he or she commits a class 4 felony. The sentence imposed pursuant to this subsection (1) shall run consecutively with any sentences being served by the offender. (1.5) If a person is serving a direct sentence to a community corrections program pursuant to section 18-1.3-301 , or is transitioning from the department of corrections to a community corrections program, or is placed in an intensive supervision program pursuant to section 17-27.5-101 , or is participating in a work release or home detention program pursuant to section 18-1.3-106 (1.1), intensive supervision program, or any other similar authorized supervised or unsupervised absence from a detention facility as defined in section 18-8-203 (3) , is housed in a staff secure facility as defined in section 19-2.5-102 , or is placed in a community corrections program for purposes of obtaining residential treatment as a condition of probation pursuant to section 18-1.3-204 (2.2) or 18-1.3-301 (4)(b), then the person is not in custody or confinement for purposes of this section.
2. If a person, while in custody or confinement and held for or charged with but not convicted of a felony, knowingly attempts to escape from said custody or confinement, he commits a class 5 felony. If the person is convicted of the felony or other crime for which he was originally in custody or confinement, the sentence imposed pursuant to this subsection (2) shall run consecutively with any sentences being served by the offender.
3. [ ] If a person, while in custody or confinement following conviction of a misdemeanor or petty offense, knowingly attempts to escape from said custody or confinement, he is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than two months nor more than four months. The sentence imposed pursuant to this subsection (3) shall run consecutively with any sentences being served by the offender.
4. If a person, while in custody or confinement and held for or charged with but not convicted of a misdemeanor or petty offense, knowingly attempts to escape from said custody or confinement, he is guilty of a petty offense and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than two months nor more than four months. If the person is convicted of the misdemeanor or petty offense for which he was originally in custody or confinement, the sentence imposed pursuant to this subsection (4) shall run consecutively with any sentences being served by the offender.
5. The sentences imposed by subsections (1), (1.5), and (2) of this section and the minimum sentences imposed by subsections (3) and (4) of this section shall be mandatory, and the court shall not grant probation or a suspended sentence, in whole or in part; except that the court may grant a suspended sentence if the court is sentencing a person to the youthful offender system pursuant to section 18-1.3-407.
6. Repealed.
7. A person held in a staff secure facility, as defined in section 19-2.5-102, is deemed in custody or confinement for purposes of this section.

(3) [ ] If a person, while in custody or confinement following conviction of a misdemeanor or petty offense, knowingly attempts to escape from said custody or confinement, the person commits a class 2 misdemeanor. The sentence imposed pursuant to this subsection (3) shall run consecutively with any sentences being served by the offender.

History. Source: L. 76, Ex. Sess.: Entire section added, p. 10, § 3, effective September 18. L. 77: (1) and (2) amended, p. 878, § 48, effective July 1, 1979. L. 79: (5) amended, p. 671, § 22, effective March 29. L. 81: (1) and (3) amended, p. 1008, § 2, effective June 12. L. 87: (6) amended, p. 667, § 5, effective May 16. L. 89: (6) amended, p. 885, § 3, effective July 1. L. 96: (5) amended, p. 1844, § 11, effective July 1; (7) added, p. 1682, § 8, effective January 1, 1997. L. 2002: (5) and (6) amended, p. 1516, § 203, effective October 1. L. 2010: (1) and (5) amended and (1.5) added,(HB 10-1373), ch. 260, p. 1178, § 1, effective May 25. L. 2020: (1.5) amended and (6) repealed,(HB 20-1019), ch. 9, p. 27, § 9, effective March 6. L. 2021: (1.5) and (7) amended,(SB 21-059), ch. 136, p. 723, § 52, effective October 1; (3) amended,(SB 21-271), ch. 462, p. 3198, § 290, effective March 1, 2022.

1. The effective date for amendments made to this section by chapter 216, L. 77, was changed from July 1, 1978, to April 1, 1979, by chapter 1, First Extraordinary Session, L. 78, and was subsequently changed to July 1, 1979, by chapter 157, § 23, L. 79. See People v. McKenna, 199Colo. 452, 611 P.2d 574 (1980).
2. Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.

For the legislative declaration contained in the 2002 act amending subsections (5) and (6), see section 1 of chapter 318, Session Laws of Colorado 2002.

A consecutive sentence for attempt to escape is required under subsection (2) only when a defendant is held for or charged with but not convicted of a felony and is later convicted of the felony or other crime for which he was originally in custody or confinement. People v. Evans, 2015 COA 156 , 363 P.3d 814.

Applicability to juvenile offender. Statute requiring the mandatory imposition of consecutive sentences for attempted escape, statute applying the statute on attempted escapes to juvenile offenders, and general children's code statute on commitment of persons to the department of institutions were construed to be in accord with each other, and the imposition of consecutive sentences was held to be an exception to the general children's code section limiting commitments of persons 18 years of age or older to a total of two years. People in Interest of E.Z.L., 815 P.2d 987 (Colo. App. 1991).

Even though the trial court was correct in imposing a consecutive sentence, the sentence must be consecutive only with regard to the sentence the juvenile was then serving and not to sentences simultaneously imposed. People in Interest of E.Z.L., 815 P.2d 987 (Colo. App. 1991).

Section 18-1-105 (9)(a)(V) does not require the imposition of a sentence beyond the presumptive range upon conviction of the crime of attempted escape under this section. People v. Martinez, 703 P.2d 619 (Colo. App. 1985).

Consecutive sentence in the aggravated range may be simultaneously imposed if the defendant escapes twice, once from custody while serving the original sentence and again during processing for the first escape. People v. Andrews, 855 P.2d 3 (Colo. App. 1993), aff'd, 871 P.2d 1199 (Colo. 1994).

Sentence enhancement provision, § 18-1-105 (9)(a)(V) , did not apply to the crime of escape and attempted escape where the general assembly had provided for enhanced punishment for the crimes of escape elsewhere, specifically in this section and § 18-8-209 , and where the general assembly did not amend the enhancement provision to make it specifically applicable to escape crimes. People v. Andrews, 871 P.2d 1199 (Colo. 1994).

Imposition of consecutive sentence for attempted escape charge is consistent with state policy goal where facts underlying the two convictions had not changed even though the sentence for one had been vacated and replaced with another sentence. People v. Spoto, 865 P.2d 907 (Colo. App. 1993).

Consecutive sentence held proper. When a person is reincarcerated on a parole revocation, he is no longer serving his original sentence. Therefore, when a person is sentenced for the crime of escape during a period of mandatory parole for another offense, ordering such a sentence to run consecutive with the period of incarceration for the parole revocation did not violate § 18-1.3-401 (1)(a)(V) (E). People v. Luther, 58 P.3d 1013 (Colo. 2002).

Subsection (2) not applicable to defendant who escaped and pled guilty to a violation of this section but was not being held for a pending felony charge and was never later convicted of a pending felony charge. People v. Evans, 2015 COA 156 , 363 P.3d 814.

Applied in People v. Hostetter, 44 Colo. App. 44, 606 P.2d 80 (1980).