Colo. Rev. Stat. § 16-11-102

Current through Chapter 519 of the 2024 Legislative Session and Chapter 2 of the 2024 First Extraordinary Session

Section 16-11-102 - Presentence or probation investigation

(1)

(a)

(I) Following the return of a verdict of guilty of a felony, other than a class 1 felony, or following a finding of guilt on such charge where the issues were tried to the court, or on a plea of guilty or nolo contendere to such a charge, or upon order of the court in any misdemeanor conviction, the probation officer shall make an investigation and written report to the court before the imposition of sentence. Each presentence report must include a substance abuse assessment or evaluation made pursuant to article 11.5 of this title and, unless waived by the court, must include, but not be limited to, information as to the defendant's family background, educational history, employment record, and past criminal record, including the defendant's past juvenile delinquency record, if any; information indicating whether the defendant has been convicted of unlawful sexual behavior as defined in section 16-22-102(9); an evaluation of the alternative dispositions available for the defendant; the information required by the court pursuant to article 18.5 of this title; a victim impact statement; and such other information as the court may require.

(II) Except as described in subparagraph (VI) of this paragraph (a), if the defendant is convicted of a felony that occurred after July 1, 2004, and he or she is eligible to receive a sentence to the department of corrections, the report described in subparagraph (I) of this paragraph (a) must include the following statement:

"If the defendant is sentenced to the Department of Corrections, he or she may not serve his or her entire sentence in prison but may be released to community corrections or parole. The defendant's Parole Eligibility Date (PED) occurs after he or she has served fifty or seventy-five percent of his or her sentence, as provided in section 17-22.5-403, Colorado Revised Statutes, less any authorized earned time.

If the defendant is sentenced to the Department of Corrections, he or she may be eligible for a reduction in the length of his or her sentence by earned time. Regular earned time is up to ten or twelve days per month, not to exceed thirty percent of the defendant's sentence; however, the defendant may be eligible for further limited reductions through the application of various types of earned time provided in statute and administered pursuant to the policy of the Department of Corrections.

If the defendant is sentenced to the Department of Corrections, he or she may be eligible for release, to await parole in a community corrections facility, if such release is approved by the local community corrections board. If the defendant was not convicted of a crime of violence, as defined in section 18-1.3-406(2), Colorado Revised Statutes, he or she may be moved to a community corrections placement as early as sixteen months prior to his or her PED. If the defendant was convicted of a crime of violence, he or she cannot be moved to a community corrections placement earlier than one hundred eighty days prior to his or her PED.

A defendant's eligibility for community corrections or parole does not necessarily mean that community corrections or parole will be granted. The inmate locator on the internet website of the Department of Corrections can provide additional information regarding the sentence of an individual defendant.

The provisions of this statement do not apply to a defendant who has been sentenced to the youthful offender system within the Department of Corrections."

(II.5) Except as provided in subsection (1)(a)(II.7) of this section, if the defendant is convicted on or after July 1, 2018, the report described in subsection (1)(a)(I) of this section must include the following statement:

Each defendant may, at the time of conviction or at any time thereafter, apply to the court for an order of collateral relief of the consequences of the defendant's conviction pursuant to the provisions of section 18-1.3-107, Colorado Revised Statutes.

(II.7) The report described in subsection (1)(a)(I) of this section need not include the statement described in subsection (1)(a)(II.5) of this section if the defendant:

(A) Has been convicted of a felony that included an element that requires a victim to suffer a serious bodily injury and the victim suffered a permanent impairment of the function of any part or organ of the body;

(B) Has been convicted of a crime of violence as described in section 18-1.3-406; or

(C) Is required to register as a sex offender pursuant to section 16-22-103.

(III) The district attorney's office shall prepare a victim impact statement. The department of human services shall provide the district attorney's office with the information necessary for the preparation of a victim impact statement. In addition, the court, in cases that it deems appropriate, may require the presentence report to include the findings and results of a professionally conducted psychiatric examination of the defendant.

(IV) No less than seventy-two hours prior to the sentencing hearing, the probation department shall provide copies of the presentence report, including any recommendations as to probation, to the prosecuting attorney and defense counsel or to the defendant if he or she is unrepresented. Upon request of either the defense or the district attorney, the probation department shall provide the presentence report at least seven days prior to the sentencing hearing. If the probation department informs the court it cannot provide the report at least seven days prior to the sentencing hearing, the court shall grant the probation department additional time to complete the report and shall reset the sentencing hearing so that the hearing is held at least seven days after the probation department provides the report.

(V) The probation department shall transmit a copy of the presentence report, and the court shall transmit the mittimus to the department of corrections.

(VI) The report described in subparagraph (I) of this paragraph (a) need not include the statement described in subparagraph (II) of this paragraph (a) if:

(A) The defendant is a sex offender for whom the sex offender management board has established separate and distinct release guidelines pursuant to section 18-1.3-1009, C.R.S.;

(B) The defendant has at least one previous conviction for a crime of violence and must be referred by the department to the state board of parole pursuant to section 17-22.5-403 (3.5), C.R.S.;

(C) The defendant is convicted of a class 1 felony or is a juvenile convicted as an adult of a class 1 felony; or

(D) The probation department has reasonable grounds to believe that the language of the statement is inapplicable to the defendant. If the probation department elects to omit the statement pursuant to this sub-subparagraph (D), the probation department shall document in the report its grounds for doing so.

(b)

(I) Each presentence report prepared regarding a sex offender, as defined in section 16-11.7-102 (2)(a)(I) to (2)(a)(III), or if requested by the prosecuting attorney or court for a person who may be determined to be a sex offender based upon a prior offense pursuant to section 16-11.7-102 (2)(a)(IV), with respect to any offense committed on or after January 1, 1996, must contain the results of an evaluation and identification conducted pursuant to article 11.7 of this title 16; except that:

(A) If the offense is a misdemeanor pursuant to the provisions of section 18-3-412.6, C.R.S., an evaluation and identification conducted pursuant to article 11.7 of this title shall not be ordered by the court;

(B) If the offense is a misdemeanor pursuant to title 42, C.R.S., or the history of sex-offending behavior was a misdemeanor sex offense committed when the defendant was a juvenile, an evaluation and identification conducted pursuant to article 11.7 of this title is not required but may be ordered by the court; and

(C) If the court accepts a stipulation that the defendant will not be sentenced to probation or if the defendant is already serving a sentence in the department of corrections, an evaluation and identification conducted pursuant to article 11.7 of this title is not required but may be ordered by the court.

(II) In addition, the presentence report shall include, when appropriate as provided in section 18-3-414.5, C.R.S., the results of the risk assessment screening instrument developed pursuant to section 16-11.7-103(4)(d). Notwithstanding the provisions of subsection (4) of this section, a presentence report shall be prepared for each person convicted as a sex offender, and the court may not dispense with the presentence evaluation, risk assessment, and report unless an evaluation and risk assessment has been completed within the last two years and there has been no material change that would affect the evaluation and risk assessment in the past two years.

(c)

(I) The state court administrator may implement a behavioral or mental health disorder screening program to screen defendants for which the court has ordered an investigation pursuant to this section. If the state court administrator chooses to implement a behavioral or mental health disorder screening program, the state court administrator shall use the standardized behavioral or mental health disorder screening instrument developed pursuant to section 16-11.9-102 and conduct the screening in accordance with the procedures established pursuant to said section. The findings and results of any standardized behavioral or mental health disorder screening conducted pursuant to this subsection (1)(c) must be included in the written report to the court prepared and submitted pursuant to this subsection (1).

(II) Prior to implementation of a behavioral or mental health disorder screening program pursuant to this subsection (1)(c), if implementation of the program would require an increase in appropriations, the state court administrator shall submit to the joint budget committee a request for funding in the amount necessary to implement the behavioral or mental health disorder screening program. If implementation of the program would require an increase in appropriations, implementation of the behavioral or mental health disorder screening program is conditional upon approval of the funding request.

(1.1) Repealed.

(1.2) Each presentence report must include information indicating whether the person is a respondent in an open dependency and neglect proceeding pursuant to article 3 of title 19.

(1.5) A victim impact statement may include the following:

(a) An identification of the victim of the offense;

(b) An itemization of any economic loss suffered by the victim as a result of the offense, including any loss incurred after the offense and after criminal charges were filed formally against the defendant. The victim impact statement shall be prepared by the district attorney's office at the time the offense is filed and shall be updated to include any loss incurred by the victim after criminal charges were filed.

(c) An identification of any physical injury suffered by the victim as a result of the offense, including information on its seriousness and permanence;

(d) A description of any change in the victim's personal welfare or familial relationships as a result of the offense;

(e) An identification of any request for psychological services initiated by the victim or the victim's family as a result of the offense;

(e.5) An evaluation of the victim's and the victim's children's safety if probation is granted;

(f) Any other information related to the impact of the offense upon the victim that the court requires.

(1.7) Each presentence report shall also include information from the offender and any other source available to the probation officer regarding the offender's estate, as defined in section 18-1.3-701(5)(b), C.R.S., and other pertinent financial information, for the purpose of determining whether such offender or juvenile has sufficient assets to pay all or part of such offender's or juvenile's cost of care, as defined in section 18-1.3-701(5)(a), C.R.S. The financial information obtained from the offender shall be submitted in writing and under oath.

(1.8) At the request of either the prosecution or the defense, each presentence report prepared regarding a youthful offender, as defined in section 18-1.3-407, who is eligible for sentencing to the youthful offender system pursuant to section 18-1.3-407.5, 19-2.5-801(5), or 19-2.5-802(1)(d)(I)(B) must include a determination by the warden of the youthful offender system whether the youthful offender is acceptable for sentencing to the youthful offender system. When making a determination, the warden shall consider the nature and circumstances of the crime, the circumstances and criminal history of the youthful offender, the available bed space in the youthful offender system, and any other appropriate considerations.

(1.9) Each presentence report must also:

(a) Include the results of an actuarial assessment of the offender's criminological risks and needs;

(b) Provide sufficient information to allow the court to consider:

(I) Whether the offender is a suitable candidate for a sentencing option that does not involve incarceration or a combination of sentencing options that does not involve incarceration; and

(II) The appropriate conditions to impose if a defendant is sentenced to probation;

(b.5) Indicate whether the offender meets the minimum eligibility requirements as provided in sections 18-1.3-104(1) (b.5) and 18-1.3-204(2)(a) (III.5) for participation in restorative justice practices;

(c) Describe the projected costs, if known, that are associated with each sentencing option that is available to the court; and

(d) Set forth the purposes of title 18, C.R.S., with respect to sentencing, as such purposes are described in section 18-1-102.5, C.R.S.

(2) The report of the probation officer and the procedures to be followed at the time sentence is imposed and final judgment is entered shall be as required by the Colorado rules of criminal procedure. In addition to the requirements of such rules, the report shall include a statement showing the amount of time during which the defendant was imprisoned awaiting trial upon the charge resulting in conviction.

(3) The court, upon its own motion or upon the petition of the probation officer, may order any defendant who is subject to presentence investigation or who has made application for probation to submit to a mental and physical examination.

(4) The court, with the concurrence of the defendant and the prosecuting attorney, may dispense with the presentence examination and report; except that the information required by section 18-1.3-603(2) and subsection (1.2) of this section and a victim impact statement must be made in every case. The amount of restitution must be ordered pursuant to section 18-1.3-603 and article 18.5 of this title 16 and endorsed upon the mittimus. The information required pursuant to subsection (1.2) of this section must be included on the mittimus.

(5) After receiving the presentence report and before imposing sentence, the court shall afford the defendant an opportunity to make a statement in his or her own behalf and to present any information in mitigation of punishment. The prosecution also shall be given an opportunity to be heard on any matter material to the imposition of sentence. The court shall then sentence the defendant pursuant to the provisions of this article and section 18-1.3-401, C.R.S.

(6) Following the return of a verdict of guilty of a felony, or a finding of guilt on such charge where the issues were tried to the court, or on a plea of guilty or nolo contendere to such a charge, the district attorney may file with the court identification photographs and fingerprints of the defendant or defendants, and such identification photographs and fingerprints shall become part of the court record. Such identification photographs and fingerprints of the defendant or defendants shall constitute prima facie evidence of identity under section 18-1.3-802, C.R.S.

C.R.S. § 16-11-102

Amended by 2023 Ch. 191,§ 9, eff. 1/1/2024.

Amended by 2023 Ch. 349,§ 1, eff. 6/5/2023.

Amended by 2021 Ch. 136, § 24, eff. 10/1/2021.

Amended by 2021 Ch. 175, § 5, eff. 10/1/2021.

Amended by 2021 Ch. 175, § 2, eff. 5/24/2021.

Amended by 2018 Ch. 259, § 3, eff. 7/1/2018.

Amended by 2017 Ch. 58, § 2, eff. 8/9/2017.

Amended by 2017 Ch. 263, § 120, eff. 5/25/2017.

Amended by 2015 Ch. 119, § 1, eff. 8/5/2015.

Amended by 2013 Ch. 272, § 4, eff. 7/1/2013.

L. 72: R&RE, p. 240, § 1. C.R.S. 1963: § 39-11-102. L. 77: (1) and (5) amended, p. 862, § 3, effective 7/1/1979. L. 81: (6) added, p. 950, § 2, effective May 27; (1) and (4) amended, p. 941, § 1, effective July 1. L. 84: (1) and (4) amended and (1.5) added, p. 651, § 1, effective 1/1/1985. L. 86: (1) amended, p. 733, § 2, effective July 1. L. 88: (1) amended, p. 680, § 2, effective July 1. L. 89: (1) amended, p. 862, § 3, effective February 26. L. 89, 1st Ex. Sess.: (1.1) added, p. 76, § 2, effective July 1. L. 91: (1) amended, p. 436, § 1, effective May 29. L. 92: (1) amended, p. 454, § 1, effective June 2. L. 94: (1)(a) amended, p. 2650, § 123, effective July 1; (1.1) repealed and (1.7) added, pp. 1362, 1356, §§ 5, 1, effective July 1; (1.5)(b) amended, p. 1050, § 5, effective July 1; (1.5)(e.5) added, p. 2036, § 16, effective July 1. L. 95: (1)(b) amended, p. 465, § 11, effective July 1. L. 96: (4) amended, p. 1778, § 3, effective June 3. L. 98: (4) amended, p. 519, § 6, effective April 30. L. 99: (1)(a) amended, p. 315, § 3, effective July 1. L. 2000: (1)(a) and (4) amended, p. 1045, § 7, effective September 1. L. 2001: (4) amended, p. 1271, § 20, effective June 5. L. 2002: (1)(c) added, p. 573, § 1, effective May 24; (1)(a) amended, p. 1182, § 9, effective July 1; (1.7), (4), (5), and (6) amended, p. 1494, § 141, effective October 1. L. 2007: (1)(b) amended, p. 253, § 1, effective March 26. L. 2009: (1.8) added, (HB 09 -1122), ch. 279, p. 279, § 2, effective October 1. L. 2010: (1.8) amended, (HB 10-1413), ch. 1204, p. 1204, § 3, effective August 11. L. 2011: (1)(b) amended, (HB 11-1138), ch. 1027, p. 1027, § 8, effective May 27; (1.9) added, (HB 11 -1180), ch. 282, p. 282, § 2, effective August 10. L. 2012: (1)(b) amended, (HB 12-1310), ch. 1395, p. 1395, § 9, effective June 7; (1)(b) amended, (HB 12-1346), ch. 946, p. 946, § 7, effective July 1. L. 2013: (1)(a) and (1)(b) amended, (SB 13-229), ch. 1427, p. 1427, § 4, effective July 1. L. 2015: (1)(a) amended, (HB 15 -1042), ch. 361, p. 361, § 1, effective August 5. L. 2017: (1)(c) amended, (SB 17-242), ch. 1297, p. 1297, § 120, effective May 25; IP(1.9) amended and (1.9)(b.5) added, (HB 17 -1039), ch. 182, p. 182, § 2, effective August 9. L. 2018: (1)(a)(II.5) and (1)(a)(II.7) amended, (HB 18-1344), ch. 1590, p. 1590, § 3, effective July 1. L. 2021: (1.8) amended, (HB 21-1091), ch. 175, p. 955, § 2, effective May 24; (1.8) amended, (SB 21-059), ch. 713, p. 713, § 24, effective October 1; (1.8) amended, (HB 21-1091), ch. 957, p. 957, § 5, effective October 1.

(1) The effective date for amendments made to this section by chapter 216, L. 77, was changed from July 1, 1978, to April 1, 1979, by chapter 1, First Extraordinary Session, L. 78, and was subsequently changed to July 1, 1979, by chapter 157, § 23, L. 79. See People v. McKenna, 199 Colo. 452 , 611 P.2d 574 (1980).

(2) Amendments to subsection (1)(b) by House Bill 12-1310 and House Bill 12-1346 were harmonized.

(3) Subsection (1.8) was amended in section 2 of HB 21-1091. Those amendments were superseded by the amendment of subsection (1.8) in SB 21-059, effective October 1, 2021. For the amendments to subsection (1.8) in HB 21-1091 in effect from May 24, 2021, to October 1, 2021, see section 2 of chapter 175, Session Laws of Colorado 2021. ( L. 2021, p. 955.)

(4) Section 7 of chapter 175 (HB 21-1091), Session Laws of Colorado 2021, provides that section 5 of the act changing this section takes effect only if SB 21-059 becomes law and takes effect either upon the effective date of HB 21-1091 or SB 21-059, whichever is later. SB 21-059 became law and took effect October 1, 2021, and HB 21-1091 took effect May 24, 2021.

For the legislative declaration contained in the 1994 act amending subsection (1)(a), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 2002 act amending subsections (1.7), (4), (5), and (6), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.