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Colorado Criminal Law – Early Termination Of Colorado Sex Offender Probation And The Impact Of A Violation Of A Deferred Judgment – Colorado’s Sex Offender Lifetime Supervision Act of 1998 (SOLSA), § 18-1.3-1001 to -1012, C.R.S. is one of the harshest statutory schemes for isolating and punishing convicted sex offenders in the entire nation.
A sentence to lifetime – indeterminate sex offender probation often “sets up the offender for failure” and many District Attorneys know that success over this length of intensive supervision probation is nearly impossible and many fail. But some succeed and they make it to the ten year mark and freedom.
Under the law a lifetime sentence to probation can be terminated as follows:
A Court “may sentence a sex offender to probation for an indeterminate period of at least ten years for a class 4 felony . . . and a maximum of the sex offender’s natural life[.]” 18-1.3- 1004(2)(a).
After such an offender has served ten years of probation, he or she may petition the district court to be discharged from the indeterminate probation sentence.
The law 18-1.3-1008(2) – reads as follows:
[O]n completion of ten years of probation for any sex offender convicted of a class 4 felony, the court shall schedule a review hearing to determine whether the sex offender should be discharged from probation.
In making its determination, the court shall determine whether the sex offender has successfully progressed in treatment and would not pose an undue threat to the community if allowed to live in the community without treatment or supervision.
The sex offender’s probation officer and treatment provider shall make recommendations to the court concerning whether the sex offender has met the requirements of this section such that he or she should be discharged from probation.
The law is exacting – a Judge has no discretion under section to terminate a sex offender’s probation before he or she has completed the minimum term of 10 years of intensive sex offender probation required by section 18- 1.3-1004(2)(a).
This issue was recently answered by the Colorado Court of Appeals in a 2015 case.
The Question before the Colorado Court of Appeals was this:
Does the time served before a revoked deferred judgment count against the ten year minimum probation requirement?
In a word, the Court answered …It does not.
The Reasoning Of The Court
In finding that the period of a deferred judgment supervision in this context does no constitute a sentence to probation, the Court of Appeals looked at the meaning of the word “probation.” The Court found that supervision under a deferred judgment is not the same as a sentence to probation under the SOLSA and that:
“… only time served on probation may count toward rendering a sex offender eligible for discharge of a probation sentence.”
A “‘sentence’ generally refers to that part of a judgment which describes the punishment imposed by the court following the defendant’s conviction for a criminal offense,” and probation is a form of sentence that may be imposed upon entry of a judgment.
“Probation” as “a sentence not involving confinement which imposes conditions and retains authority in the sentencing court to modify the conditions of the sentence or to resentence the offender if he violates the conditions.”
With “true” probation even if a Defendant successfully completes probation, the judgment of conviction remains on his or her criminal record. Now compare a deferred judgment plea bargain. While it may seem as if the Defendant is on probation while serving a deferred judgment and sentence – a “DJ” is a dispositional alternative imposed in lieu of a judgment and sentence.
While a deferred judgement when used in a Colorado felony may seem like the same brand of sex offender probation under the Colorado’s Sex Offender Lifetime Supervision Act of 1998 it is not and the Colorado Court Of Appeals explains that difference:
The Court writes further:
Unlike the consequence of a successfully completed probation sentence, when the Defendant fully complies with the conditions of the deferred judgment for the prescribed 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.’
In other words – a sentence to probation may be imposed upon entry of a judgment of conviction, but a deferred judgment is not a sentence and is not imposed in connection with a judgment.
While the conditions of a deferred judgment are similar or even – at times – the same as real probation, the law views them differently.
Because the law that permits early termination of a lifetime probation sentence under Colorado’s Sex Offender Lifetime Supervision Act, the “Act” mentions only “probation” and not the kind of supervision that occurs under a deferred judgment and therefore deferred judgment “probation” is not counted toward the 10 year threshold minimum number of years required before early termination of the lifetime probation supervision can occur.
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at firstname.lastname@example.org – 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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