Chapter 8 - § 8.2 • MODIFICATION AND REVOCATION PROCEEDINGS

• Jurisdiction: Colorado

§ 8.2 • MODIFICATION AND REVOCATION PROCEEDINGS

§ 8.2.1—Modification of Probation

A defendant has the right to seek a reduction in the terms and conditions of probation. Crim. P. 35(b). In addition, C.R.S. § 18-1.3-204(4) provides that the court, for good cause shown, can shorten, lengthen, or alter the conditions of probation after notice to the defendant, district attorney, and probation office. For example, a defendant may seek to have probation shortened because he or she has completed all of the conditions and claims there is no longer a need for supervision and the costs entailed by such supervision. In this example, the statute requires the district attorney and the probation officer be notified, but does not require a hearing unless either the district attorney or the defendant asks for one. The common practice is to allow the prosecutor a reasonable length of time to object to any such request for modification, and to grant a hearing if either side requests one.

A defendant can consent to an extension of probation without a hearing, a showing of good cause, or advisement of counsel. People v. Hotle, 216 P.3d 68, 70 (Colo. App. 2008), held that a defendant need not be advised of his or her right to counsel or his or her right to a hearing for a probation extension to be valid. People v. Romero, 198 P.3d 1209, 1212 (Colo. App. 2007), also held that the failure of the trial court to sign an order extending probation did not deprive the trial court of jurisdiction over a subsequent revocation proceeding when the procedures to extend were initiated before the initial probationary period expired. A defendant who agrees in writing with his or her probation officer to an extension of probation to enable the defendant to pay restitution can be revoked from probation for committing a new offense during the extension period even though the court did not hold a hearing and extend his or her probation. People v. Conner, 148 P.3d 235, 239 (Colo. App. 2006).

§ 8.2.2—Revocation of Probation

To initiate a probation violation, a complaint must be filed alleging a violation of one or more conditions of probation. Notice must be given to the defendant, who may either admit the allegations of the complaint or deny them and demand a hearing. A probation revocation hearing is conducted before the court, and the burden is on the prosecution to prove the allegations. If the complaint is not proved, the defendant is returned to probation under the pre-existing terms and conditions; if the complaint is proved, the court may re-sentence the defendant to any sentence that the court could have originally imposed. See C.R.S. § 16-11-206.

C.R.S. § 16-11-205 governs the procedures for the institution of a probation violation complaint and the procedures for summoning or arresting the probationer for advisement and hearing. C.R.S. § 16-11-206 governs the procedure for conducting the revocation hearing. Crim. P. 32(f) is the rule that implements the requirements of the statutes. Appellate decisions have applied certain constitutional protections to revocation proceedings and have interpreted the statutes and rule.

A probation revocation is "initiated" for jurisdictional purposes in one of four ways: (1) the issuance of a summons by a probation officer; (2) the arrest of a probationer by a probation officer; (3) the filing of a complaint for the revocation of the probation; or (4) the filing of a report by the probation officer, or a verified complaint by any person, together with a request for an arrest warrant. People v. Galvin, 961 P.2d 1137, 1138-39 (Colo. App. 1997); see also People v. Gore, 774 P.2d 877, 883-84 (Colo. 1989). People v. Peretsky, 616 P.2d 170, 172 (Colo. App. 1980), reached the same result in the context of a proceeding to revoke a deferred judgment and sentence. The court in Gore recognized "the dilemma posed by the 'last-minute' probation violator" but indicated that the remedy to this problem is for the prosecution to ask for any necessary extension to ensure that treatment has been successfully concluded or that the checks have cleared, etc.

Generally, probation revocation proceedings are initiated by the filing of a complaint by a probation officer or district attorney pursuant to C.R.S. § 16-11-205(5). The complaint must contain the name of the probationer and a statement of the alleged violation, including the date and approximate location of the alleged violation. The complaint must be signed by the probation officer or district attorney.

The defendant is notified of the complaint by either the probation officer or the court. The court may send a summons, along with the complaint, to the last known address of the defendant. Alternatively, pursuant to C.R.S. § 16-11-205(2), a probation officer may issue a summons, accompanied by a complaint or other explanation of the alleged violation, to the probationer. If the court is persuaded that the arrest of the probationer is "reasonably necessary," the court may issue a warrant in lieu of a summons. C.R.S. § 16-11-205(6).

Service of a summons and complaint or a notice of hearing is pursuant to Crim. P. 49 and C.R.C.P. 4, by service on the defendant's attorney or by mail to the defendant at the address shown in the pleading. Historically, courts have sent the summons and complaint or notice of hearing to the defendant, not to counsel. Since Crim. P. 44(e) provides that counsel's representation automatically terminates following the conclusion of trial court proceedings, the proper practice is clearly to send the notice to the defendant.

A probation officer may arrest a probationer prior to the filing of a complaint pursuant to C.R.S. § 16-11-205(1). Such an arrest may be effected when the probation officer has a warrant or probable cause to believe there is an outstanding warrant, or has probable cause to believe that a crime or a probation violation has been or is being committed by the probationer. If a probation officer arrests a probationer pursuant to this subsection, the probation officer must file a complaint with the court within seven days or, if the probationer is in custody, order the probationer's release. C.R.S. § 16-11-205(4).

Today, much probation supervision is being accomplished through private providers. C.R.S. § 18-1.3-202(2). The Colorado legislature has recognized this and authorized these entities to issue summons and file a complaint with the court under the same provisions as state probation officers. C.R.S. § 16-11-205(7).

Regardless of the method by which the probation complaint commenced, it must be filed before the probationary period expires. Unless a warrant is issued or a complaint is filed before the expiration of probation, the court loses jurisdiction to hear an allegation that the probationer violated probation. However, after the state has initiated revocation proceedings, if the court extends the period of probation in order to give the defendant additional time to comply with conditions and the defendant still fails to comply, the district attorney may file an amendment of the complaint, which will relate back to the filing of the original complaint. People v. Nichols, 140 P.3d 198, 201 (Colo. App. 2006). Nichols was decided in the context of a deferred sentence revocation, but explicitly notes that it applies to probation revocations.

If a probationer fails to appear after notification by the court, a failure to appear warrant may be issued for the arrest of the probationer. Often, such a non-appearance is due to the fact that the defendant has moved without notifying the court or the probation officer, which failure is generally an independent violation of probation. If a probationer fails to appear after being...