Section 18-1.3-104 - Alternatives in imposition of sentence(1) Within the limitations of the applicable statute pertaining to sentencing and subject to the provisions of this title 18, the trial court has the following alternatives in entering judgment imposing a sentence: (a) The defendant may be granted probation unless any provision of law makes him or her ineligible for probation. The granting or denial of probation and the conditions of probation including the length of probation shall not be subject to appellate review unless probation is granted contrary to the provisions of this title.(b) Subject to the provisions of sections 18-1.3-401 and 18-1.3-401.5, in class 2, class 3, class 4, class 5, and class 6 felonies and level 1, level 2, level 3, and level 4 drug felonies, the defendant may be sentenced to imprisonment for a definite period of time.(b.5)(I) Except as otherwise provided by subparagraph (II) of this paragraph (b.5), any defendant who, in the determination of the court, is a candidate for an alternative sentencing option and who would otherwise be sentenced to imprisonment pursuant to paragraph (b) of this subsection (1) may, as an alternative, be sentenced to a specialized restitution and community service program pursuant to section 18-1.3-302, which may include restorative justice practices, as defined in section 18-1-901 (3) (o.5), if such defendant is determined eligible and is accepted into such program. To be eligible for restorative justice practices, the defendant shall not have been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., a crime in which the underlying factual basis involves domestic violence, as defined in section 18-6-800.3 (1), stalking as defined in section 18-3-602, or violation of a protection order as defined in section 18-6-803.5. If the court orders the defendant to attend a restorative justice practices victim-offender conference, the facilitator of the conference shall provide his or her services for a fee of no more than one hundred twenty-five dollars, based on a sliding scale; however, the fee may be waived by the court. Any statements made during the conference shall be confidential and shall not be used as a basis for charging or prosecuting the defendant unless the defendant commits a chargeable offense during the conference.(II)(A) The court shall consider and may sentence any defendant who is a nonviolent offender as defined in sub-subparagraph (B) of this subparagraph (II) pursuant to subsection (2) of this section.(B) As used in this section, "nonviolent offender" means a person convicted of a felony other than a crime of violence as defined in section 18-1.3-406 (2), one of the felonies set forth in section 18-3-104, 18-4-203, 18-4-301, or 18-4-401 (2)(c) or (5), or a felony offense committed against a child as set forth in articles 3, 6, and 7 of this title 18, and who is not subject to the provisions of section 18-1.3-801.(c) The defendant shall be sentenced to death in those cases in which a death sentence is required pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102.(d) The defendant may be sentenced to the payment of a fine or to a term of imprisonment or to both a term of imprisonment and the payment of a fine; except that a person who has been twice convicted of a felony under the laws of this state, any other state, or the United States prior to the conviction for which he or she is being sentenced is not eligible to receive a fine in lieu of imprisonment. No fine shall be imposed for conviction of a felony except as provided in sections 18-1.3-401 and 25-15-310, articles 22 to 29 of title 39, or article 3 of title 42, C.R.S.(e) The defendant may be sentenced to comply with any other court order authorized by law.(f) The defendant may be sentenced to payment of costs.(g) The defendant may be sentenced pursuant to part 4 or 5 of this article.(h)(I) If the defendant is eligible pursuant to section 18-1.3-407.5 or section 19-2.5-801 (5), the defendant may be sentenced to the youthful offender system in accordance with section 18-1.3-407.(i) Notwithstanding any provision of this subsection (1) to the contrary, the court shall sentence any person convicted of a sex offense, as defined in section 18-1.3-1003 (5), committed on or after November 1, 1998, pursuant to the provisions of part 10 of this article.(2)(a) The sentencing court shall consider the following factors in sentencing nonviolent offenders: (I) The nature and character of the offense;(II) The character and record of the nonviolent offender, including whether the offender is a first-time offender;(III) The offender's employment history;(IV) The potential rehabilitative value of the sentencing alternatives available to the court;(V) Any potential impact on the safety of the victim, the victim's family, and the general public based upon sentencing alternatives available to the court; and(VI) The offender's ability to pay restitution to the victim or the victim's family based upon the sentencing alternatives available to the court.(c) The court shall consider and may sentence a nonviolent offender to any one or any combination of the sentences described in this paragraph (c) if, upon consideration of the factors described in paragraph (a) of this subsection (2), the court does not grant probation pursuant to paragraph (b) of this subsection (2) or does not sentence the offender to the department of corrections as provided under paragraph (d) of this subsection (2):(I) A community corrections program pursuant to section 18-1.3-301;(II) A home detention program pursuant to section 18-1.3-105; or(III) A specialized restitution and community service program pursuant to section 18-1.3-302.(d) Nothing in this subsection (2) shall be construed as prohibiting a court from exercising its discretion in sentencing a nonviolent offender to the department of corrections based upon, but not limited to, any one or more factors described in paragraph (a) of this subsection (2).(3)(a) In determining the appropriate sentencing alternative for a defendant who has been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), the sentencing court shall consider the defendant's previous criminal and juvenile delinquency records, if any, set forth in the presentence investigation report prepared pursuant to section 16-11-102 (1)(a), C.R.S.(b) For purposes of this subsection (3), "convicted" means a conviction by a jury or by a court and shall also include a deferred judgment and sentence, a deferred adjudication, an adjudication, and a plea of guilty or nolo contendere.Amended by 2021 Ch. 462, § 181, eff. 3/1/2022.Amended by 2021 Ch. 136, § 40, eff. 10/1/2021.Amended by 2020 Ch. 61, § 9, eff. 3/23/2020.Amended by 2014 Ch. 391, § 9, eff. 6/6/2014.Amended by 2013 Ch. 333, § 53, eff. 10/1/2013.L. 2002: Entire article added with relocations, p. 1368, § 2, effective October 1. L. 2002, 3rd Ex. Sess.: (1)(c) amended, p. 32, § 24, effective October 1. L. 2003: IP(1), (1)(a), and (1)(b) amended, p. 975, § 12, effective April 17. L. 2004: (1)(h)(II) repealed, p. 243, § 1, effective April 5. L. 2009: (1)(h)(I) amended, (HB 09 -1122), ch. 280, p. 280, § 3, effective October 1. L. 2010: (1)(h)(I) amended, (HB 10-1413), ch. 1204, p. 1204, § 4, effective August 11. L. 2011: (1)(b.5)(I) amended, (HB 11-1032), ch. 1402, p. 1402, § 7, effective August 10. L. 2013: (1)(b) amended and (2)(b) repealed, (SB 13-250), ch. 1935, p. 1935, § 53, effective October 1. L. 2014: (1)(b) amended, (SB 14-163), ch. 1972, p. 1972, § 9, effective June 6. L. 2020: IP(1) and (1)(c) amended, (SB 20 -100), ch. 208, p. 208, § 9, effective March 23. L. 2021: (1)(h)(I) amended, (SB 21-059), ch. 718, p. 718, § 40, effective October 1; (1)(b.5)(II)(B) amended, (SB 21-271), ch. 3168, p. 3168, § 181, effective 3/1/2022.(1) This section is similar to former § 16-11-101 as it existed prior to 2002.
(2) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
2021 Ch. 462, was passed without a safety clause. See Colo. Const. art. V, § 1(3). For the legislative declaration contained in the 2002 act amending subsection (1)(c), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session.