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FAQ: What Happens When a Colorado Deferred Judgement Agreement is Violated – Revoked?

Introduction: One of the best plea bargains that an individual can strike in Colorado is a deferred judgement. There is a danger, however, and that danger is this – is the individual violates the deferred judgement agreement (DJ and S) – s/he stands convicted of the crime that was the subject of the DJ and S.

This violation of – or revocation of a deferred judgement is very similar to a violation of a Colorado probation sentence. Specifically, the sentence can be to any sentence for the offense that served as the DJ and S crime. So if the crime was a deferred to a class four felony – the possible sentence is from 2 to 6 years in the Colorado Department of Corrections. When sentence is imposed – most likely however, in addition to the conviction entering – the sentence will be tp probation.

How A Colorado Deferred Judgement Works

If the defendant wants to accept a deferred judgement, if one is offered, the defendant must plead guilty to the charge. However, the defendant will not be sentenced. Sentencing is deferred or delayed pending the completion of the period of the specific deferred agreement.

For example, in a drug possession case, the defendant typically will take a series of classes focused on drug treatment and if s/he successfully completes the program, and stays out of trouble with law enforcement, the criminal charge is dismissed and – most importantly – is sealable under Colorado law.

Understanding the Nature of a Deferred Judgement and a Complaint to Revoke a Deferred Judgement

H. Michael will develop a strategic defensive plan based upon your specific circumstances to get you the best result possible.

There are times when you are on a deferred judgement that you believe that a motion to revoke your DJ and S is going to be filed. Do not wait until you are arrested, contact our law firm immediately.

If we are contacted before the Motion to Revoke your deferred – but prior to arrest – we can sometimes suggest ways in which you can limit to some extent your downside risk. Meeting with your probation officer or perhaps walking into Court – of the Complaint to Revoke has already been filed may result in a much better result. This shows the Court some good faith on your part, indicating that you are not fleeing, and more importantly it increases the odds that we will be able to get a reasonable bond set.

You will nearly always get a bond on a Motion to Revoke a deferred judgement. If you are on regular probation and you turn yourself into the court with a lawyer, the court will normally set a bond immediately and you will get out quickly. However, if you wait until you are arrested and you are on regular probation many courts will instruct the sheriff to remand you without bond.

This will result in your incarceration until a lawyer can convince the judge to set a bond.

It is absolutely necessary that you immediately contact and report to your probation officer. Failing to report to probation is an independent reason for a technical violation of the DJ and S. and failing to report is very easy for the State to prove.

If you believe that you have an Complaint to Revoke your DJ and S and do not want to appear at your scheduled hearing because you fear that you will be arrested and there will be no bond set, contact H. Michael immediately.

The Complaint or “Motion to Revoke” will be filed in the papers with the Court. It is an official document setting out exactly when, where, and how probation was allegedly violated. The motion to revoke will be reviewed by your lawyer to determine whether there are any possible defenses and whether the State is going to be able to prove the allegations.

One defense that is often overlooked is when the State fails to file the motion to revoke with the Court and have the warrant issued prior to the term of probation expiring.

There are other defenses to a motion to revoke that need to be evaluated in each case and presented forcefully. Every defendant’s motion to revoke is different and each has to be evaluated based upon the facts, the defendant’s circumstances, and what the prosecutor or judge is offering in the negotiation process. Sometimes setting the Motion to Revoke for a contested hearing forces the prosecutor to review his position resulting in a much better offer. In other circumstances it is advantageous to obtain numerous continuances so that a defendant can complete whatever the probation officer alleges is deficient. Upon completion of any deficiency such as courses or community service hours it may be possible to get the Motion withdrawn or if a hearing is necessary it is likely the judge will look more favorably on the defendant if all the probationer’s requirements have been met.

Here is the actual Colorado law – CRS 18-1.3-102(1)

18-1.3-102. Deferred sentencing of defendant.

(1) In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for a period not to exceed four years from the date of entry of a plea to a felony or two years from the date of entry of a plea to a misdemeanor, or petty offense, or traffic offense for the purpose of entering judgment and sentence upon such plea of guilty; except that such period may be extended for an additional time up to one hundred eighty days if the failure to pay restitution is the sole condition of supervision which has not been fulfilled, because of inability to pay, and the defendant has shown a future ability to pay. During such time, the court may place the defendant under the supervision of the probation department.

(2) Prior to entry of a plea of guilty to be followed by deferred judgment and sentence, the district attorney, in the course of plea discussion as provided in sections 16-7-301 and 16-7-302, C.R.S., is authorized to enter into a written stipulation, to be signed by the defendant, the defendant’s attorney of record, and the district attorney, under which the defendant is obligated to adhere to such stipulation. The conditions imposed in the stipulation shall be similar in all respects to conditions permitted as part of probation.

Any person convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3 (1), shall stipulate to the conditions specified in section 18-1.3-204 (2) (b). In addition, the stipulation may require the defendant to perform community or charitable work service projects or make donations thereto.

Upon full compliance with such conditions by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice. Such stipulation shall specifically provide that, upon a breach by the defendant of any condition regulating the conduct of the defendant, the court shall enter judgment and impose sentence upon such guilty plea.

When, as a condition of the deferred sentence, the court orders the defendant to make restitution, evidence of failure to pay the said restitution shall constitute prima facie evidence of a violation. Whether a breach of condition has occurred shall be determined by the court without a jury upon application of the district attorney or a probation officer and upon notice of hearing thereon of not less than five days to the defendant or the defendant’s attorney of record.

Application for entry of judgment and imposition of sentence may be made by the district attorney or a probation officer at any time within the term of the deferred judgment or within thirty days thereafter. The burden of proof at such hearing shall be by a preponderance of the evidence, and the procedural safeguards required in a revocation of probation hearing shall apply.

(3) When a defendant signs a stipulation by which it is provided that judgment and sentence shall be deferred for a time certain, he or she thereby waives all rights to a speedy trial, as provided in section 18-1-405.

(4) A warrant for the arrest of any defendant for breach of a condition of a deferred sentence may be issued by any judge of a court of record upon the report of a probation officer, or upon the verified complaint of any person, establishing to the satisfaction of the judge probable cause to believe that a condition of the deferred sentence has been violated and that the arrest of the defendant is reasonably necessary. The warrant may be executed by any probation officer or by a peace officer authorized to execute warrants in the county in which the defendant is found.

Some Important Facts and Issues Surrounding Deferred Judgements

A judge cannot CHANGE the terms of the deferred judgement ¨CONTRACT

A Trial court lacks authority under this section to act unilaterally to modify the terms of a stipulation without the district attorney’s and the Defendant´s consent.

A Trial court has no authority to order a deferred sentence in absence of written consent of defendant, defendant’s attorney, and district attorney under plain language of subsection (1).

A Trial court does not have authority to act unilaterally with deferred sentence agreements, including shortening a stipulated length of a deferred sentence and a sentence agreement without the district attorney’s consent.

Any Sentence

If the Deferred Judgement is REVOKED the judge has the authority to impose any sentence including an aggravated range sentence even though it had previously imposed a deferred sentence. Nothing in the plain language of this section suggests that the sentencing range upon imposition of a previously deferred sentence differs in any way from the range that would have applied absent deferral.

Because the court lacks the authority to enforce an agreed-upon extension of the deferred judgment beyond the statutory time limitations, it also lacks authority to enforce such an extension framed as a stipulation to new supervision requirements.

The court has discretion to extend the deferral period, subject to the time limitations in this section, in order to give the defendant additional time to pay restitution.

Failure to File the Motion to Revoke Within Time Limits

Time limit for filing of application for entry of judgment not tolled by order of revocation. Where district attorney did not file application “within the term of the deferred judgment or within thirty days thereafter,” as required by subsection (2), such application would not be permitted upon remand. People v. Berquist, 916 P.2d 629 (Colo. App. 1996).

Right To A Hearing

The Proceedings to revoke deferred judgment are conducted according to procedures used to revoke probation. Thus, the defendant is not entitled to the full range of constitutional rights in a criminal trial. The right to confront witnesses is satisfied by the right to cross exam hearsay statements and presentation of evidence to the contrary.

A Revocation hearing is trial-type procedure. A revocation hearing under this section is a trial-type procedure conducted by the trial court for the purpose of making a factual determination as to whether there has been a failure to abide by the conditions of a deferred sentence. Hallman v. People, 652 P.2d 173 (Colo. 1982).

And 15-day limitation for hearing applies. Since the 15-day limitation imposed by § 16-11-206 (4) is a procedural safeguard required for probation revocation hearings, it applies to a deferred sentence revocation pursuant to this section.

A Conviction is entered upon finding that defendant violated condition. This section requires the court to enter a judgment of conviction upon finding at a revocation hearing that the defendant has violated the condition of a deferred judgment.

Once the trial court finds that a violation has been proven by a preponderance of the evidence, the deferred sentence must be revoked.

The Scope of Revocation Hearing on Motion to Revoke

In a revocation hearing, the court need only apprise itself of facts which convince it that the conditions of the deferred sentence have been breached.

Standard of proof for violation of deferred sentence. To support a revocation, a violation of the deferred sentence need only be proven by a preponderance of the evidence. Once the proof has been made and the court finds that the terms of the deferred judgment were violated the court must act to revoke the deferred judgment status, enter judgment, and impose sentence upon the defendant’s guilty plea.

Beyond reasonable doubt standard of proof. An adult charged with a violation of his deferred sentencing which constitutes a criminal offense has the right to demand that the charge be proven “beyond a reasonable doubt”.

A Court may grant probation upon revocation of deferred judgment and sentence. As long as a defendant is otherwise eligible for probation, a court may grant him probation upon the revocation of a deferred judgment and sentence.

As sentence imposed following revocation is within trial court’s discretion. When a deferred judgment is revoked in a felony case, sentencing to the penitentiary is not mandatory. The type of sentence to be imposed after the revocation of the deferred sentence is a matter within the discretion of the trial court, and a defendant is entitled to a consideration of all statutory sentencing alternatives at the time the deferred sentence is revoked and judgment of conviction is entered against him.

APPELLATE REVIEW of Judge’s Decision to Revoke

Appeal or review of revocation of deferred sentence available. A defendant may either appeal an order revoking a deferred sentence, pursuant to C.A.R. 1 or file a motion for post-conviction review, pursuant to Crim. P. 35(c). People v. Boykin, 631 P.2d 1149 (Colo. App. 1981).

Limitations on the LENGTH OF DEFERRED JUDGEMENTS

A Felony deferred judgement is limited to a minimum of 2 years and a maximum of 4 years from the date of the entry of the plea.

A Misdemeanor deferred judgement is limited to a period not to exceed two years from the date of entry of a plea and this this includes petty offenses and traffic offenses

Extension of the Period of the Deferred Judgement

The period for a deferred judgement may be extended by agreement for an additional time up to one hundred eighty days if the failure to pay restitution is the sole condition of supervision which has not been fulfilled, because of inability to pay, and the defendant has shown a future ability to pay.

COMPARE a Deferred Prosecution

A deferred prosecution involves a stipulation to continue the case for a specific period – usually 6 months. If the stipulation is violated, the State can proceed to try the defendant. Unlike a deferred judgment, the offender does not enter a guilty plea and the entire prosecution is deferred. A deferred prosecution is rare these days – as there is no real prosecution at all and it has fallen into disfavor among most prosecutors.

 


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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