“Deferred Sentence” in Colorado – How does it work?

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.

The following flowchart shows the deferred judgment and sentence process:

 

In this article, our Denver Colorado criminal defense lawyers will explain:

• 1. Overview
• 2. Eligibility
• 3. Finishing Probation
• 4. Violating Probation
• 5. Record Seals
• 6. Related Topics
• Additional Reading

1. Overview

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

• a guilty plea and
• completing court-ordered conditions.

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.

What Happens After the Deferred Sentence Is Over

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, including 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 the outcome as long as they follow all the terms. Juries and district attorneys no longer have any say.

2. Eligibility

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

• simple drug possession for personal use,
• traffic violations, or
• public intoxication.

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.

3. Finishing Probation

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

• the criminal offense,
• your prior criminal history,
• the victims involved, and
• the judge involved.

Common Conditions of a Deferred Judgment and Sentence

Such conditions the court orders may include:

• Random drug testing
• Anger management classes
• Domestic violence evaluation and up to 36 weeks of treatment
• Abstaining from alcohol and drugs
• Drug or alcohol education classes
• Drug and alcohol use evaluation and substance abuse treatment
• Counseling and therapy
• Prohibited contact with certain individuals
• A prohibition from certain locations
• Maintaining a current address
• Checking regularly with your probation officer (PO)
• Attending compliance/review hearings
• Limited travel privileges (such as not leaving Colorado or U.S. without permission)
• Job or school attendance
• Community service
• Letters of apology
• Surrendering your guns
• Restitution to victims
• Theft classes (in property and larceny crime cases)
• No additional law violations

Length of a Deferred Judgment and Sentence

The probationary term will depend on the offense, which means meeting the detailed conditions for the probationary period. The period could be

• up to 4 years for a felony or
• up to 2 years for a misdemeanor, petty offense or traffic offense.

In some cases, the period could be extended.

What Happens After You Complete Probation

After successfully completing the terms of your deferred judgment and sentence,

• your guilty plea will be withdrawn and
• the district attorney will dismiss your case with prejudice so it cannot be brought again.

Your criminal record will be eligible to have your arrest sealed.

4. Violating Probation

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

• impose a “mandatory entry of judgment” and
• impose a sentence upon the guilty plea.

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.

A Second Chance

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

• deferred judgment for up to 2 years or
• incarceration for up to 90 days.⁴

5. Record Seals

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.

If you do complete the deferred judgment and sentence, the district attorney drops the case, and there is no criminal conviction. Therefore your records are eligible to be sealed right away.

Learn about the record seal process in Colorado.

6. Related Topics

Alternative Imposition of Sentence C.R.S. 18-1.3-104

Colorado provides a number of alternative sentences, depending on

• the criminal offense,
• the nature of the crime,
• your history, and
• other factors.

Alternatives to a judgment imposing a sentence include

• probation,
• specialized restitution and community service programs,
• home detention, and
• community corrections programs.

Alternative Imposition of Sentence for Drug Felonies C.R.S. 18-1.3-104.5

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

• treatment programs or
• probation.

Home Detention Programs C.R.S. 18-1.3-106

You may be able to leave detention during necessary and reasonable hours for

• seeking employment,
• working,
• attending school, or
• seeking medical treatment.

Home detention is an alternative correctional sentence where you remain within your approved residence at all times except for court-approved activities.

County Jail Alternatives C.R.S. 18-1.3-107

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

• job and
• employment prospects.

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• Alternatives to Conviction: Deferred Adjudication as a Way of Avoiding Collateral Consequences – Federal Sentencing Reporter.
• Criminal Law – Right to Appeal from an Order Deferring Sentence – Gonzaga Law Review.
• Constitutional Law – Due Process – Probationer Not Entitled to Use Immunity at Deferred Sentence Violation Hearing Held Prior to Trial for Same Incident – Wayne Law Review.
• Criminal Law – Probation – Where a Sentence is Deferred and the Defendant is Placed on Probation, the Trial Court Loses Authority to Revoke Probation and Impose Sentence upon Expiration of the Probationary Period – Gonzaga Law Review.
• Criminal Law—Appeal—Review of Deferred Sentence – Buffalo Law Review.

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Legal References