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In Colorado, a deferred judgment and sentence is where you plead guilty and are required to meet certain conditions during a probationary period. Then if you complete the terms of the deferred sentence, the case against you is dismissed with no conviction.
Here are five key things to know:
In this article, our Denver Colorado criminal defense lawyers will explain:
Deferred judgment and sentencing is similar to a contract or written stipulation. You agree to certain terms, and there are consequences if you breach them.
Under Colorado law, a deferred judgment and sentence is a way for you to avoid criminal sentencing in exchange for completing probationary terms and staying out of trouble. First-time offenders and those facing minor, non-violent offenses may be offered a deferred judgment in exchange for
The judge will set a probationary time period from 6 months to up to 4 years depending on your case. During this time, you are typically under the probation department’s supervision and have to meet certain conditions.
If you are able to complete your conditions successfully without any violations, the case against you will be dismissed, and you can petition to have your record sealed as if no violation had occurred.
However if you allegedly violate the terms of your deferred sentence, you are entitled to a court hearing where you can argue to the judge that there was no violation and/or you deserve to remain on your deferred sentence. If the judge finds against you, they may impose a sentence for the crime up to the maximum penalty, which may include jail time and fines or probation.
Many defendants like deferred sentences because it gives them a sense of control. Once the judge agrees to it, they know what the outcome will be as long as they follow all the terms. Juries and district attorneys no longer have any say.
A deferred sentence in a criminal case is usually negotiated between the district attorney and your lawyer. Even if you take the offer, it must be approved by the judge.
First-time minor offenses are the most likely cases to be eligible for a deferred sentence. This may include
It may be much more difficult to get a deferred sentence offer with a prior criminal record, after a DUI / drunk driving arrest, an act of domestic violence, or if charged with a serious felony offense.1
Note that as a condition of getting a deferred sentence, the D.A. typically makes you plea to the most serious charge in your case (if there were multiple charges). This is supposed to serve as a deterrent to you violating probation because doing so would result in you getting a serious sentence.
Successful completion of the court-ordered probationary terms is required to have the case against you dropped. Each exact term of the deferred judgment and sentencing offer will depend on
Such conditions the court orders may include:
The probationary term will depend on the offense, which means meeting the detailed conditions for the probationary period. The period could be
In some cases, the period could be extended.
After successfully completing the terms of your deferred judgment and sentence,
Your criminal record will be eligible to have your arrest sealed.
Violating probation may cause you to be remanded to jail.
If the only condition you have not fulfilled is a failure to pay victim restitution because you were unable to come up with the money, the probationary terms can be extended for up to one hundred eighty-two (182) days of additional time.2
For any other probationary violations, or upon an arrest for another criminal charge, you have the right to a hearing where you can argue that there was no violation and you should stay on your deferred judgment and sentence. This hearing, though, is not a criminal trial and is much harder to win than one; by agreeing to the deferred judgment and sentencing, you waived your trial rights.3
In most cases when there is a violation, the court will
Note that if your violation involved picking up a new criminal case – and you ultimately get convicted of it – the sentence for the new case may run consecutively (not concurrently) with your original case’s sentence. This could increase your time in custody by years.
Even if you did commit a violation, the court usually has the discretion not to execute an entry of judgment and instead continue the deferred judgment if the record shows that you would be better served and the public safety would not be jeopardized.
However, the court will impose additional and immediate sanctions, which may include extending the time period of
After successful completion of the deferred judgment and sentence, the district attorney drops the case, and there is no criminal conviction. So if you are applying for a job, you can honestly say you have not been convicted of a crime.
If you do not complete the deferred judgment and sentence – and the judge imposes judgment – then your record would show a conviction. Plus this conviction is likely permanent and unsealable.
After completing the deferred sentencing conditions, your records are eligible to be sealed. However, sealing your records is not automatic.
After completing the terms of your deferred sentence you will have to petition to seal your records. Once your records are sealed, the public and employers would not have access to the arrest information.
For as long as your record remains unsealed, the deferred judgment and sentencing will be on your record and visible to anyone running a background check such as employers, schools, landlords, licensing boards, lenders, etc.
Colorado provides a number of alternative sentences, depending on
Alternatives to a judgment imposing a sentence include
The law provides alternative imposition of sentences for certain level 4 drug felony cases. During sentencing or resentence after revocation of probation, the court may consider all reasonable and appropriate alternative sentences, including
You may be able to leave detention during necessary and reasonable hours for
Home detention is an alternative correctional sentence where you remain within your approved residence at all times except for court-approved activities.
When you enter into alternative sentencing, the court may enter an order of collateral relief which is intended to improve your likelihood of success, including preserving or improving your
(1)(a) 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.
(b) The period may be extended for an additional time:
(I) 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
(II) 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.
(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 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 and the responses to violation behavior are similar to 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 18, 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.
(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.