In Colorado, if you get convicted of a third serious felony, you may face harsher penalties as a habitual offender, which is Colorado’s version of three-strikes law. This could lead to a prison sentence up to four times longer than usual, or even life in prison.
In this article, our Denver Colorado criminal defense lawyers will address:
- 1. What is a habitual offender in Colorado?
- 2. Three Strikes Law in Colorado?
- 3. What are habitual offender crimes?
- 4. How do prosecutors show evidence of former convictions?
- 5. Habitual offender status after sentencing
- 6. Can the sentence be modified?
- 7. Related Topics
1. What is a habitual offender in Colorado?
Under Colorado law, a “habitual offender” is a person
- charged with a serious felony
- who has been convicted of two prior felonies.
This is also known as the Three Strikes law. After two serious felony convictions, a third felony conviction could result in life in prison, much higher than the normal maximum sentence for the same crime.
2. Three Strikes Law in Colorado
A person is a habitual criminal and shall be punished by a term of life in prison if the person is convicted of:
- Any class 1 or 2 felony, level 1 drug felony, or class 3 felony that is a crime of violence; and
- Has been twice convicted previously for any of the above offenses.1
A conviction for a fourth felony is punishable by a term of four times the maximum presumptive range for the felony of which the person is convicted.2
Anyone who has been previously convicted of a class 1-5 felony or level 1-3 drug felony may also be considered a habitual offender if they are convicted of a 3rd felony within 10 years.3 A conviction for a 3rd felony (class 1-5 felony or level 1-3 drug felony) within 10 years is punishable by a term of three times the maximum presumptive range for the felony of which a person is convicted.4
3. What are habitual offender crimes?
Under C.R.S. 18-1.3-801, offenses that qualify for the three strikes law include
- class 3 felony crimes of violence,
- level 1 drug felonies, or
- any class 1 or class 2 felony.
This includes crimes prosecuted in Colorado, other states, or federal offenses.5
Examples of three strikes crimes include:
Class 1 Felonies
- Child abuse
- Assault during escape
Class 2 Felonies
- Second-degree murder
- Second-degree kidnapping
- Sexual assault
- Human trafficking
Class 3 Felony Crimes of Violence
- First or second-degree assault
- Aggravated robbery
- First-degree arson
- First degree
- Sex offense causing bodily injury
- Use of a deadly weapon
Level 1 Drug Felonies
- Distribution or sale of more than 225 grams of cocaine, heroin, LSD, methamphetamine, Fentanyl, OxyContin, or other schedule I or schedule II drugs
- Sale of more than 2 ½ pounds of marijuana to a minor
- Sale or distribution of schedule I or schedule II drugs to a minor
4. How do prosecutors show evidence of former convictions?
A duly authenticated copy of the record of former convictions and judgments of any court of record for any of said crimes against the party indicted or informed against is used as prima facie evidence of such convictions and may be used in evidence against such party. Evidence of prior convictions may include identification photographs and fingerprints and shall be prima facie evidence of the identity of such party and may be used in evidence against him or her.6
5. Habitual offender status after sentencing
If the prosecutor does not have evidence of prior three-strikes convictions, or the defendant has not yet been sentenced for a prior offense, the defendant may still face enhanced sentencing. The prosecutor may file separate counts that the defendant has been convicted of an offense upon which judgment has not been entered and that the defendant has been previously convicted of a felony warranting application of increased penalties.
The defendant may then be arraigned upon the new information and if the defendant denies the previous conviction, the trial judge shall try the issue prior to the imposition of sentence.7
6. Can the sentence be modified?
For offenses committed on or after July 1, 2023, a defendant who has been convicted and sentenced as a habitual offender, receiving a sentence of 24 years or more, can request the court to modify their sentence, including any other habitual sentences, after serving a minimum of 10 calendar years.
The defendant bears the responsibility of providing evidence, by a preponderance of the evidence, that there are significant mitigating factors related to the offense or offenses, or circumstances about the defendant at the time of conviction. Furthermore, they must demonstrate positive, engaged, and productive behavior while incarcerated and show that they currently pose no threat to the community.
If the court finds sufficient justification for modifying the sentence, the defendant may be resentenced to a term ranging from at least the midpoint in the aggravated range for the class of felony the defendant was convicted of, up to a sentence less than the current sentence.8
7. Related Topics
7.1. Class 1 Felony in Colorado
Class 1 felonies are the most serious category of Colorado felonies, and they carry the harshest punishment. Examples of Colorado class 1 felonies include first-degree-murder, first-degree kidnapping, assault during an escape, and treason. The minimum sentence for a class 1 felony is life in prison. The maximum sentence for a class 1 felony is death.
7.2. Class 2 Felony in Colorado
Class 2 felonies are the second most serious category of Colorado felonies. Some class 2 felonies include first-degree kidnapping, sexual assault, and human trafficking of a child. The penalties for a class 2 felony include 8 to 24 years in prison and a fine of up to $1 million.
7.3. Level 1 Drug Felony in Colorado
Level 1 felonies are the most serious category of Colorado drug felonies. Examples of level 1 drug felonies in Colorado include selling large amounts of cocaine, selling more than 50 pounds of marijuana, or selling more than 2 ½ pounds of marijuana to a minor. The penalties for a level 1 drug felony conviction include up to 32 years in prison and a fine of up to $1 million.
7.4. Class 3 Felony Crime of Violence
A conviction for a crime of violence in Colorado will include enhanced prison sentencing. The maximum penalties for crimes of violence will be doubled. A class 3 felony crime of violence may include first-degree assault, second-degree murder, or aggravated robbery. The maximum penalty for a class 3 felony crime of violence is 16 years in prison and a fine of up to $750,000.
Laws in other states…
In California? See our article about the Three Strikes Law (PC 667).
In Nevada? See our article on habitual criminals (NRS 207.010; NRS 207.012; NRS 207.014).
- C.R.S. 18-1.3-801(1)(a)
- C.R.S. 18-1.3-801(2)(a)(I)
- C.R.S. 18-1.3-801(1.5)
- C.R.S. 18-1.3-801(1.5)(a)
- C.R.S. 18-1.3-801(1)(b)
- C.R.S. 18-1.3-802
- C.R.S. 18-1.3-803(6)
- House Bill 23-1292 (“(a) For offenses committed on or after July 1, 2023, a defendant convicted and sentenced as an habitual offender pursuant to this section who has been sentenced to twenty-four years or more in the department of corrections and has served at least ten calendar years of a sentence for a felony offense for which the person was sentenced as an habitual criminal may petition the court for a modification of that sentence or for counsel to assist in filing the petition and any other habitual sentence for which the defendant is imprisoned in the department of corrections. The court shall appoint counsel for the defendant from the office of state public defender and shall serve an order of appointment on the office, which shall represent the defendant or notify the court of a conflict. The court shall allow counsel to supplement the petition. (b) The court shall set the matter for evidentiary hearing. At the hearing, the defendant has the burden of demonstrating, by a preponderance of the evidence, that: (i) the statutory eligibility criteria are met; (ii) there are mitigating factors regarding the defendant’s circumstances at the time of conviction or substantial mitigating factors regarding the circumstances of the offense or offenses; (iii) the defendant has demonstrated positive, engaged, and productive behavior in the department of corrections; and (iv) the defendant does not currently present a risk to the community at large. (c) If the defendant satisfies the burden described in subsection (6)(b) of this section and the court determines, based on the totality of the circumstances, that a modification of sentence is justified, the court may resentence the defendant to a term of at least the midpoint in the aggravated range for the class of felony for which the defendant was convicted, up to a term less than the current sentence.”).