Early Termination of a Colorado Deferred Judgement
An attempt to obtain an early termination of a Colorado deferred judgment has more of an uphill battle than early termination of probation.
To understand why this is true the reader must understand the nature of the legal device referred to as a deferred judgment and sentence or “DJ and S.”
A deferred judgment and sentence is a negotiated agreement with the District Attorney and must be accepted by the Judge. If you are successfully negotiate a “straight DJ” you can avoid getting any permanent conviction the conviction is never finalized.
While the terms are sometimes mistakenly interchangeable, A DJ is NOT diversion. With a DJ you are required to pled guilty and, if you fail to successfully complete the DJ program, you cannot later enter a plea of not guilty and go to trial…something that is available with a diversion plea agreement.
A Colorado deferred judgment, while probation “like” in every respect, is not “straight probation.” It is a “dispositional alternative” that is imposed by an agreement in lieu of a judgment ( a conviction) and sentence. When a Defendant pleads guilty, if it is not pursuant to a deferred judgment and sentence, a trial court must enter a judgment and a sentence.Some Defining Aspects of a Colorado Deferred Judgment
A deferred judgment is a creation of statute. Colorado’s deferred judgment statute, section 18-1.3-102, strictly controls a trial court’s authority to impose a deferred judgment.
The Judge of a Trial Court does NOT have authority to sentence a Defendant to a deferred judgment outside the limits that are listed in the statute.
- If a Defendant has fully complied with the conditions of a deferred judgment and sentence for the agreed upon period: “the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.”
- A Defendant who has successfully completed a deferred judgment is not ‘convicted.’ A deferred judgment is not a sentence and is not imposed in connection with a judgment. It is not the equivalent of a suspended sentence because no sentence has been imposed or suspended.
- A deferred judgment is technically not a sentence it is a “continuance” with probation-like supervision conditions.
A Deferred Judgement and Sentence is a legally binding contract.
Here’s the rub, a sentence to probation imposed by a judge within the presumptive limits of the law for the conviction is can be modified entered by that Judge by means of the Defendant’s MOTION for Early Termination Of Probation. The Judge can grant the motion without the consent and or agreement of the District Attorney,
On the other hand by comparison to sentencing for a conviction, a deferred judgment and sentence, because it is an stipulated agreement of the contracting parties, (the Defendant and the Prosecutor), REQUIRES the DA Prosecutor to CONSENT to any modification of the LENGTH of the deferred judgment and sentence.
The analogy to a lease such as an automobile or apartment lease is a good one.
Basically here is the rule if you intend to seek an early termination of a Colorado Deferred Judgment and Sentence you must obtain the agreement of the prosecutor. If the DA Prosecutor objects, the Judge has no authority to modify the terms of the Deferred Judgment unilaterally.Bottom line
Seek the DA’s consent before filing your request for early termination of the Deferred Judgment if the DA refuses don’t bother filing the motion.One Last Point: A Dismissed Deferred Judgment is not the Same as Sealing Your Record
There is another area of law that must be made clear where there is a Deferred. If you successfully complete a deferred judgment probation, while the case is dismissed it STILL APPEARS on your criminal history. To remove the entire record of the case a civil petition to seal the record must be filed AFTER the case is dismissed.What follows is Colorado’s Deferred Sentencing Law 18-1.3-10218-1.3-102. Deferred Sentencing of Defendant
- 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 the purpose of entering judgment and sentence upon the plea of guilty for a period not to exceed four years for a felony or two years for a misdemeanor or petty offense or traffic offense. The period shall begin to run from the date that the court continues the case.
- The period may be extended for an additional time:
- Up to one hundred eighty-two 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; or
- Up to two years if the deferred judgment is for an offense listed in section 16-11.7-102(3), C.R.S., good cause is shown, and the district attorney and defendant consent to the extension.
- 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. A 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. The 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 the guilty plea; except that, if the offense is a violation of article 18 of this title, the court may accept an admission or find a violation of the stipulation without entering judgment and imposing sentence if the court first makes findings of fact on the record stating the entry of judgment and sentencing would not be consistent with the purposes of sentencing, that the defendant would be better served by continuing the deferred judgment period, and that public safety would not be jeopardized by the continuation of the deferred judgment.
If the court makes those findings and continues the deferred judgment over the objection of the prosecution, the court shall also impose additional and immediate sanctions upon the defendant to address the violation, to include, but not be limited to, the imposition of further terms and conditions that will enhance the likelihood of the defendant’s success, respond to the defendant’s noncompliance, and promote further individual accountability, including extending the time period of the deferred judgment for up to two additional years or incarceration in the county jail for a period not to exceed ninety days consistent with the provisions of section 18-1.3-202(1), or both.
When, as a condition of the deferred sentence, the court orders the defendant to make restitution, evidence of failure to pay the 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 seven 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-five days thereafter.
The burden of proof at the hearing shall be by a preponderance of the evidence, and the procedural safeguards required in a revocation of probation hearing shall apply.
- 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.
- 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.
Cite as C.R.S. § 18-1.3-102.Colorado Criminal Law Early Termination of a Colorado Deferred Judgement
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About The Author: H. Michael Steinberg Email The Author at email@example.com . A Denver Colorado Criminal Defense Lawyer or call his office at 303-627-7777 during business hours or call his cell if you cannot wait and need his immediate assistance 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
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You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer and we encourage you to “vet” our firm. Over the last 30 plus years by focusing ONLY on Colorado criminal law H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.