Colorado § 16-8-115 - Release from commitment after verdict of not guilty by reason of insanity or not guilty by reason of impaired mental condition - definitions.

§ 16-8-115. Release from commitment after verdict of not guilty by reason of insanity or not guilty by reason of impaired mental condition - definitions.

(1) (a) (I) Upon an initial commitment following a finding of not guilty by reason of insanity pursuant to section 16-8-105.5 (4)(b), or upon delaying final entry of the finding of not guilty by reason of insanity pursuant to section 16-8-105.5 (4)(a), the court shall schedule an initial release hearing no later than one hundred twenty days after the initial commitment. The court shall order the department of human services to complete a release examination no later than thirty days prior to the initial release hearing. The defendant may request an additional release examination by a medical expert in mental health disorders of the defendant's choosing pursuant to section 16-8-108. The court may continue the hearing beyond one hundred and twenty days upon a finding of good cause or if necessary to conduct a second evaluation of the defendant.

(II) The court shall conduct the initial release hearing. At the initial release hearing, if any evidence is introduced that shows the defendant is ineligible for conditional release, the defendant has the burden of proving by a preponderance of the evidence that the defendant meets the applicable test for conditional release pursuant to section 16-8-120. If the court finds the defendant eligible for conditional release, the court may impose such terms and conditions as the court determines are in the best interest of the defendant and the community. If the court finds the defendant ineligible for conditional release, the court shall commit or continue the previous commitment of the defendant to the physical custody of the department of human services.

(III) This subsection (1)(a) applies to individuals found not guilty by reason of insanity on or after September 1, 2022.

(b) Following the initial release hearing pursuant to subsection (1)(a) of this section, the court may order a release hearing at any time on its own motion, on motion of the prosecuting attorney, or on motion of the defendant. The court shall order a release hearing upon receipt of the report of the chief officer of the hospital where the defendant is committed, or the chief officer's designee, that the defendant no longer requires hospitalization, as provided in section 16-8-116. Except for the initial release hearing, unless the court for good cause shown permits, the defendant is not entitled to a hearing within one year subsequent to a previous hearing.

(b.5) At any unconditional release hearing for a defendant who is on any conditional release, if any evidence is introduced that shows the defendant is ineligible for unconditional release, the defendant has the burden of proving by a preponderance of the evidence that the defendant meets the applicable test for unconditional release pursuant to section 16-8-120. If the court finds the defendant eligible for unconditional release, the court shall order the unconditional release of the defendant. If the court finds the defendant ineligible for unconditional release, the court shall order continued conditional release and may impose or modify such terms and conditions as the court determines are in the best interest of the defendant and the community and shall notify the district attorney of the order.

(c) Beginning September 1, 2022, the chief officer of the hospital where the defendant is committed, or the chief officer's designee, shall annually submit a release examination report to the court certifying whether the defendant continues to meet the criteria for ongoing inpatient hospitalization or meets the applicable test for release pursuant to section 16-8-120. The report must be submitted each year by the date on which the defendant was initially committed for inpatient hospitalization unless another release examination is ordered within the twelve months preceding the date. The release examination report must include the information required for a release examination pursuant to subsection (2.5) of this section. The hospital shall provide a copy of the report to the defendant, the prosecuting attorney, and any other attorney of record. Upon receipt and after review of the report, the court may order a release hearing on its own motion, on motion of the prosecuting attorney, or on motion of the defendant.

(1.5) (a) Any victim of any crime or any member of the victim's immediate family, if the victim has died or is a minor, the perpetrator of which has been found not guilty by reason of insanity or not guilty by reason of impaired mental condition, shall be notified by the court in a timely manner prior to any hearing for release of the perpetrator held pursuant to subsection (1) of this section, if the victim or family member can reasonably be located. This subsection (1.5)(a) applies to offenses committed before July 1, 1995.

(b) Any victim of any crime or any member of the victim's immediate family, if the victim has died or is a minor, the perpetrator of which has been found not guilty by reason of insanity, shall be notified by the court in a timely manner prior to any hearing for release of the perpetrator held pursuant to subsection (1) of this section, if the victim or family member can reasonably be located. This subsection (1.5)(b) applies to offenses committed on or after July 1, 1995.

(2) (a) The court shall order a release examination of the defendant when a current one has not already been furnished or when either the prosecution or defense moves for an examination of the defendant at a different hospital or by different experts. The court may order any additional or supplemental examination, investigation, or study that the court deems necessary to a proper consideration and determination of the question of eligibility for release. The court shall set the matter for release hearing after the court has received all of the reports that the court has ordered pursuant to this section. When none of the reports indicates that the defendant is eligible for release, the defendant's request for a release hearing shall be denied by the court if the defendant is unable to show by way of an offer of proof any evidence by a medical expert in mental disorders that would indicate that the defendant is eligible for release. For the purposes of this subsection (2), "medical expert in mental disorders" means a physician licensed pursuant to article 240 of title 12, a psychologist licensed pursuant to article 245 of title 12, a psychiatric technician licensed pursuant to article 295 of title 12, a registered professional nurse, as defined in section 12-255-104 (11), who by reason of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing, or a social worker licensed pursuant to part 4 of article 245 of title 12. The release hearing shall be to the court or, on demand by the defendant, to a jury composed of not more than six persons. At the release hearing, if any evidence of insanity is introduced, the defendant has the burden of proving restoration of sanity by a preponderance of the evidence; if any evidence of ineligibility for release by reason of impaired mental condition is introduced, the defendant has the burden of proving, by a preponderance of the evidence, that the defendant is eligible for release by no longer having an impaired mental condition. This subsection (2)(a) applies to offenses committed before July 1, 1995.

(b) The court shall order a release examination of the defendant when a current one has not already been furnished or when either the prosecution or defense moves for an examination of the defendant at a different hospital or by different experts. The court may order any additional or supplemental examination, investigation, or study that the court deems necessary to a proper consideration and determination of the question of eligibility for release. The court shall set the matter for release hearing after the court has received all of the reports that the court ordered pursuant to this section. When none of the reports indicates that the defendant is eligible for release, the court shall deny the defendant's request for a release hearing if the defendant is unable to show by way of an offer of proof any evidence by a medical expert in mental disorders that would indicate that the defendant is eligible for release. For the purposes of this subsection (2), "medical expert in mental disorders" means a physician licensed pursuant to article 240 of title 12, a psychologist licensed pursuant to article 245 of title 12, a psychiatric technician licensed pursuant to article 295 of title 12, a registered professional nurse as, defined in section 12-255-104 (11), who by reason of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing, or a social worker licensed pursuant to part 4 of article 245 of title 12. The release hearing shall be to the court or, on demand by the defendant, to a jury composed of not more than six persons. At the release hearing, if any evidence that the defendant does not meet the release criteria is introduced, the defendant has the burden of proving by a preponderance of the evidence that the defendant does not have an abnormal mental condition that would be likely to cause the defendant to be dangerous either to the defendant's self or to others or to the community in the reasonably foreseeable future. This subsection (2)(b) applies to offenses committed on or after July 1, 1995.

(2.5) In addition to any other requirement pursuant to this section, the release examination report must include:

(a) A summary of the materials reviewed, assessments conducted, and other bases of opinion rendered;

(b) The defendant's current diagnosis and whether the defendant's symptoms of mental disease or defect are in remission;

(c) Information about medications currently prescribed to the defendant and whether the defendant is compliant with taking the prescribed medications;

(d) A summary of the treatment provided to the defendant since the last release examination, if applicable;

(e) An initial assessment of the defendant's risk of reoffending, including a summary of the defendant's treatment needs by utilizing evidence-based standards of individualized treatment and management of people acquitted by reason of insanity;

(f) A summary of the specific treatment options available to the defendant in the community and the specific treatment the defendant may receive at a facility designated by the executive director of the department of human services;

(g) A summary of whether and how ongoing risks could be managed if placement in the community were granted; and

(h) An opinion as to whether the defendant currently meets the applicable test for release, as described in section 16-8-120, citing specific facts and evidence supporting the opinion.

(3) (a) If the court or jury finds the defendant eligible for release, the court may impose such terms and conditions as the court determines are in the best interests of the defendant and the community, and the jury shall be so instructed. If the court or jury finds the defendant ineligible for release, the court shall recommit the defendant. The court's order placing the defendant on conditional release shall include notice that the defendant's conditional release may be revoked pursuant to the provisions of section 16-8-115.5.

(b) When a defendant is conditionally released, the chief officer of the hospital where the defendant is committed, or the chief officer's designee, shall forthwith give written notice of the terms and conditions of the release to the executive director of the department of human services and to the director of any behavioral health safety net provider that may be charged with the defendant's continued treatment. The director of the behavioral health safety net provider shall make written reports every three months to the executive director of the department of human services and to the district attorney for the judicial district where the defendant was committed and to the district attorney for any judicial district where the defendant may be required to receive treatment concerning the defendant's treatment and status. The reports must include all known violations of the terms and conditions of the defendant's release and any changes in the defendant's mental status that would indicate that the defendant has become ineligible to remain on conditional release.

(c) A defendant who has been conditionally released remains under the supervision of the department of human services until the committing court enters a final order of unconditional release. When a defendant fails to comply with any conditions of the defendant's release requiring the defendant to establish, maintain, and reside at a specific residence and the defendant's whereabouts have become unknown to the authorities charged with the defendant's supervision or when the defendant leaves the state of Colorado without the consent of the committing court, the defendant's absence from supervision constitutes unauthorized absence, as defined in section 18-8-208.2. Such offense occurs in the county in which the defendant is authorized to reside.

(d) Any terms and conditions imposed by the court on the defendant's release and the defendant's mental status shall be reviewed at least every twelve months unless the court sooner holds a release hearing as provided in this section.

(e) As long as the defendant is granted conditional release and is subject to the provisions thereof, there shall be free transmission of all information, including clinical information regarding the defendant, among the department of human services, the appropriate behavioral health safety net providers, and appropriate district attorneys, law enforcement, and court personnel.

(4) (a) In addition to any terms and conditions of release imposed pursuant to subsection (3) of this section, a court shall order a defendant, as a condition of release, to register with the local law enforcement agency of the jurisdiction in which the defendant resides if the court finds that:

(I) The defendant was found not guilty by reason of insanity on a charge of an offense involving unlawful sexual behavior; or

(II) The defendant was found not guilty by reason of insanity on a charge of any other offense, the underlying factual basis of which includes an offense involving unlawful sexual behavior.

(a.5) In addition to any terms and conditions of release imposed pursuant to subsection (3) of this section, a court may order a defendant, as a condition of release, to register with the local law enforcement agency of the jurisdiction in which the defendant resides if the court finds that the chief officer of the hospital where the defendant has been committed, or the chief officer's designee, recommends registration based on information obtained from the defendant during the course of treatment that indicates the defendant has committed an offense involving unlawful sexual behavior.

(b) The court's order placing the defendant on conditional release shall include notice of the requirement to register. The court's order, at a minimum, shall specify:

(I) The time period following release within which the defendant shall register with the local law enforcement agency;

(II) The time period following a change of residence within which the defendant shall reregister with the local law enforcement agency of the jurisdiction in which the defendant resides;

(III) The frequency with which the defendant must reregister with the local law enforcement agency of the jurisdiction in which the defendant resides to provide a periodic verification of the defendant's location;

(IV) Any other circumstances under which the defendant must reregister with the local law enforcement agency of the jurisdiction in which the defendant resides.

(c) Prior to release of any defendant who is required to register as a condition of release pursuant to this subsection (4), the department of human services shall obtain from the defendant the address at which the defendant plans to reside upon release. At least two days prior to release of the defendant, the department of human services shall notify the local law enforcement agency of the jurisdiction in which the defendant plans to reside upon release and the Colorado bureau of investigation of the anticipated release of the defendant and shall provide to the local law enforcement agency and the Colorado bureau of investigation the address at which the defendant plans to reside, a copy of the court order establishing the condition to register pursuant to this section, and any other pertinent information concerning the defendant.

(d) If the defendant plans to reside within the corporate limits of any city, town, or city and county, the defendant shall register at the office of the chief law enforcement officer of the city, town, or city and county. If the defendant plans to reside outside of such corporate limits, the defendant shall register at the office of the county sheriff of the county in which the defendant plans to reside.

(e) A defendant who registers with a local law enforcement agency as a condition of release pursuant to this subsection (4) shall register using forms provided by the local law enforcement agency and shall provide the information requested by the local law enforcement agency, including at a minimum a photograph and a complete set of fingerprints.

(f) The local law enforcement agency shall transmit any registrations received pursuant to subsection (4)(e) of this section to the Colorado bureau of investigation within three business days following receipt of the registration. The Colorado bureau of investigation shall include any registration information received pursuant to this section in the central registry established pursuant to section 16-22-110 and shall specify that the information applies to a defendant required to register as a condition of release pursuant to this section. The forms completed by a defendant required to register as a condition of release pursuant to this subsection (4) are confidential and must not be open to inspection except as provided in subsection (3)(e) of this section and except as provided for release of information to the public pursuant to sections 16-22-110 (6) and 16-22-112.

(g) As used in this subsection (4), "an offense involving unlawful sexual behavior" means any of the following offenses:

(I) (A) Sexual assault, in violation of section 18-3-402, C.R.S.; or

(B) Sexual assault in the first degree, in violation of section 18-3-402, C.R.S., as it existed prior to July 1, 2000;

(II) Sexual assault in the second degree, in violation of section 18-3-403, C.R.S., as it existed prior to July 1, 2000;

(III) (A) Unlawful sexual contact, in violation of section 18-3-404, C.R.S.; or

(B) Sexual assault in the third degree, in violation of section 18-3-404, C.R.S., as it existed prior to July 1, 2000;

(IV) Sexual assault on a child, in violation of section 18-3-405, C.R.S.;

(V) Sexual assault on a child by one in a position of trust, in violation of section 18-3-405.3, C.R.S.;

(VI) Sexual assault on a client by a psychotherapist, in violation of section 18-3-405.5, C.R.S.;

(VII) Enticement of a child, in violation of section 18-3-305, C.R.S.;

(VIII) Incest, in violation of section 18-6-301, C.R.S.;

(IX) Aggravated incest, in violation of section 18-6-302, C.R.S.;

(X) Human trafficking of a minor for sexual servitude, as described in section 18-3-504 (2), C.R.S.;

(XI) Sexual exploitation of children, in violation of section 18-6-403, C.R.S.;

(XII) Procurement of a child for sexual exploitation, in violation of section 18-6-404, C.R.S.;

(XIII) Indecent exposure, in violation of section 18-7-302, C.R.S.;

(XIV) Soliciting for commercial sexual activity with a child, in violation of section 18-7-402;

(XV) Pandering of a child, in violation of section 18-7-403, C.R.S.;

(XVI) Procurement of a child, in violation of section 18-7-403.5, C.R.S.;

(XVII) Keeping a place of commercial sexual activity with a child, in violation of section 18-7-404;

(XVIII) Pimping of a child, in violation of section 18-7-405, C.R.S.;

(XIX) Inducement of commercial sexual activity with a child, in violation of section 18-7-405.5;

(XX) Engaging in commercial sexual activity with a child, in violation of section 18-7-406;

(XX.5) As each of the following offenses existed prior to July 1, 2026: Soliciting for child prostitution, in violation of section 18-7-402; keeping a place of child prostitution, in violation of section 18-7-404; inducement of child prostitution, in violation of section 18-7-405.5; or patronizing a prostituted child, in violation of section 18-7-406; or

(XXI) Criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in this subsection (4)(g).

(h) Any condition imposed pursuant to this subsection (4) shall be in addition to any conditions that may be imposed pursuant to subsection (3) of this section and shall be subject to monitoring, review, and enforcement in the same manner as any condition imposed pursuant to subsection (3) of this section.

(i) (I) Any defendant required to register as a condition of release pursuant to this subsection (4), upon completion of a period of not less than twenty years from the date the defendant is placed on conditional release, may petition the district court for an order that discontinues the requirement for registration and removes the defendant's name from the central registry established pursuant to section 16-22-110. The court may issue an order only if the court makes written findings of fact that the defendant has neither been convicted nor found not guilty by reason of insanity of an offense involving unlawful sexual behavior subsequent to the defendant's conditional release and that the defendant would not pose an undue threat to the community if allowed to live in the community without registration.

(II) Upon the filing of a petition pursuant to this subsection (4)(i), the court shall set a date for a hearing on the petition. The defendant shall notify the local law enforcement agency with which the defendant is required to register and the prosecuting attorney for the jurisdiction in which the local law enforcement agency is located of the filing of the petition and the hearing date. The court shall notify the victim of the filing of the petition and the hearing date. At the hearing, the court shall give opportunity to the victim to provide written or oral testimony. If the court enters an order discontinuing the defendant's duty to register, the defendant shall send a copy of the order to the local law enforcement agency and the Colorado bureau of investigation.

Source: L. 72: R&RE, p. 231, § 1. C.R.S. 1963: § 39-8-115. L. 81: (3) amended, p. 934, § 3, effective July 1; (1) amended, p. 938, § 1, effective September 1; (2) amended, p. 939, § 1, effective September 1. L. 83: (1) and (2) amended, p. 679, § 1, effective July 1; (2) amended, p. 676, § 8, effective July 1. L. 86: (2) amended, p. 736, § 1, effective March 13. L. 90: (1.5) added, p. 924, § 4, effective March 27. L. 94: (3)(a) amended, p. 1423, § 1, effective July 1; (3)(b), (3)(c), and (3)(e) amended, p. 2649, § 121, effective July 1. L. 95: (1.5) and (2) amended, p. 77, § 12, effective July 1. L. 2002: (4) added, p. 495, § 1, effective July 1; (4)(f) amended, p.1191, § 37, effective July 1. L. 2003: (4)(i)(I) amended, p. 1990, § 28, effective May 22. L. 2005: (4)(a) amended and (4)(a.5) added, p. 995, § 1, effective June 2. L. 2010: (4)(g)(X) amended, (SB 10-140), ch. 156, p. 537, § 4, effective April 21. L. 2012: (1) amended, (SB 12-175), ch. 208, p. 850, § 76, effective July 1. L. 2014: (4)(g)(X) amended, (HB 14-1273), ch. 282, p. 1152, § 10, effective July 1. L. 2019: (4)(i)(II) amended, (HB 19-1064), ch. 296, p. 2749, § 1, effective May 28; (2) amended, (HB 19-1172), ch. 136, p. 1670, § 84, effective October 1. L. 2022: (1) amended and (2.5) added, (HB 22-1061), ch. 438, p. 3081, § 2, effective August 10; (3)(b) and (3)(e) amended, (HB 22-1278), ch. 222, p. 1589, § 220, effective July 1, 2024. L. 2023: (3)(c) amended, (HB 23-1293), ch. 298, p. 1783, § 3, effective October 1. L. 2025: (1)(b), (1)(c), (1.5), (2), (3)(b), (3)(c), (4)(a.5), (4)(f), (4)(g)(XXI), and (4)(i)(I) amended, (HB 25-1058), ch. 15, p. 50, § 17, effective August 6. L. 2026: (1)(a)(I) amended and (1)(b.5) added, (SB 26-014), ch. 54, p. 229, § 2, effective April 20; (4)(g)(XIV), (4)(g)(XVII), (4)(g)(XIX), and (4)(g)(XX) amended and (4)(g)(XX.5) added, (SB 26-015), ch. 335, p. 2036, § 13, effective July 1.

Cross references: For the legislative declaration contained in the 1994 act amending subsections (3)(b), (3)(c), and (3)(e), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration in SB 26-015, see section 1 of chapter 335, Session Laws of Colorado 2026.

ANNOTATION

Annotator's note. Since § 16-8-115 is similar to repealed § 39-8-4, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

This section does not state that the release hearing shall be considered a civil proceeding. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976).

Where a proceeding is an inquiry into the mental condition of a defendant who has been committed under a plea of not guilty by reason of insanity, the proceeding is not an adversary proceeding in the usual sense of a case which is controlled by the rules of civil procedure. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976).

Rather, it is a special statutory proceeding. In view of the detailed procedure prescribed by this section, the release proceedings are special statutory proceedings governed by C.R.C.P. 81(a), People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976).

Historically, the supreme court has considered mental health proceedings to be special statutory proceedings. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976).

The provisions of paragraphs (a), (b), and (c) of subsection (3) indicate legislative intent to vest the committing court with continuing subject matter jurisdiction to determine questions relating to the treatment needs of a committed defendant. People v. Gilliland, 769 P.2d 477 (Colo. 1989).

Committing court has subject matter jurisdiction to hear and determine issues relating to the care and treatment of a committed defendant. Court that did not commit defendant was without habeas corpus jurisdiction to hear treatment issues. Garcia v. Carmel, 873 P.2d 1317 (Colo. 1994).

But no other circumstances are set forth in the statutes relating to the committing court's jurisdiction after the order of commitment is entered, and thus there is no jurisdiction over issues involving the return of seized property. People v. Galves, 955 P.2d 582 (Colo. App. 1997).

Probation, recommitment, and transfer are discretionary acts clothed with governmental immunity. Where the trial judge had continuing jurisdiction under Colorado law both over appellant upon his commitment to a state hospital following acquittal on grounds of insanity and his transfer to the state penitentiary and over the subject matter involved, the doctrine of judicial immunity is applicable to the judge against allegations of violations of the civil rights act. The supervision of the state hospital and the staff psychiatrist were also clothed with governmental immunity because the revocation of probation, recommitment, and transfer were discretionary in nature. Franklin v. Meredith, 386 F.2d 958 (10th Cir. 1967).

Implied authority to order recommitment. The statutory authority to issue a conditional release order necessarily and implicitly includes the authority to enforce that order by recommitment. Campbell v. District Court, 195 Colo. 304, 577 P.2d 1096 (1978).

Automatic commitment not denial of due process. A defendant acquitted by reason of insanity is not denied due process of law by an immediate and automatic commitment to a psychiatric facility, so long as there are available to him procedures similar to those in this section. People v. Chavez, 629 P.2d 1040 (Colo. 1981).

Nor is six-month initial commitment period. Given the uncertainties and variables of psychiatric diagnosis and prognosis, the legislative choice of a six-month period of initial commitment does not violate due process, for in the absence of a showing that the time fixed is unreasonable in length and unrelated to purpose a court must defer to the general assembly's decision. People v. Chavez, 629 P.2d 1040 (Colo. 1981); Glatz v. Kort, 650 F. Supp. 191 (D. Colo. 1984), aff'd, 807 F.2d 1514 (10th Cir. 1986).

Defendant's liberty interest not violated by requirement in subsection (4)(a) that he register as a sex offender as a condition of his conditional release since the requirement was in place prior to his conditional release. People v. Durapau, 12 COA 67, 280 P.3d 42.

Since sex offender registration is not punitive, requiring an offender who pled not guilty by reason of insanity to register as a sex offender upon his or her conditional release does not violate the principles of ex post facto. People v. Durapau, 12 COA 67, 280 P.3d 42.

Release conditioned by criminal probation denies due process. A judgment which places one adjudged not guilty by reason of insanity on criminal probation or, on his refusal to accept such terms, remands him to indefinite custody violates his fourteenth amendment rights under the United States constitution. Such a commitment is an invalid deprivation of liberty without due process. Scheidt v. Meredith, 307 F. Supp. 63 (D. Colo. 1970).

As such conditions may not be imposed on one not convicted of crime. Criminal probation is designed for the guilty and not for those who are not guilty. An essential requirement is an adjudication of guilt, and punitive aspects are clearly involved. The conditions imposed upon a person who has been granted probationary release under this section are, as a matter of practice, the same conditions imposed upon a convicted criminal who has been placed on probation. The imposition of such conditions on one who has not been convicted of a crime is unconstitutional. Scheidt v. Meredith, 307 F. Supp. 63 (D. Colo. 1970).

Unrelated criminal probationary conditions unconstitutional. The imposition of criminal probationary conditions which are not related to the individual seeking release are unconstitutional. Campbell v. District Court, 195 Colo. 304, 577 P.2d 1096 (1978).

Conditional release of one restored to sanity may not be conditioned on terms having no relation to his status and which were nonresponsive or irrelevant to the judgment of not guilty by reason of insanity. Scheidt v. Meredith, 307 F. Supp. 63 (D. Colo. 1970).

Court may impose nonpunitive terms such as out-patient care. The interests of the community and the individual are relevant to the granting of a conditional release. It would be clearly proper to require that petitioner accept psychiatric out-patient care or supervision, but, terms which were designed to regulate the activities of convicted criminals, and which are punitive in nature, cannot be imposed. Scheidt v. Meredith, 307 F. Supp. 63 (D. Colo. 1970).

However, there is no per se prohibition against admission of evidence concerning specific conditions of release. Rather, admissibility of evidence is to be determined within framework of rules of relevance in rules of evidence. Vialpando v. People, 727 P.2d 1090 (Colo. 1986).

Under subsection (3), a defendant who is conditionally released remains under the supervision of the department of institutions until the committing court enters a final order of unconditional release. People v. McCoy, 821 P.2d 873 (Colo. App. 1991).

Writ of habeas corpus is a proper remedy for persons committed to a state hospital after a plea of not guilty by reason of insanity to challenge a lack of treatment and to obtain a remedy addressing appropriate treatment short of immediate release. Marshall v. Kort, 690 P.2d 219 (Colo. 1984).

Court may terminate release to order examination. Inasmuch as defendant had been away from the hospital on a probationary release, the hospital authorities would almost have to reexamine him in order to determine his present mental condition and the trial court could terminate probationary release and return him to the hospital for the period of time necessary for reexamination. Bartosik v. People, 163 Colo. 267, 430 P.2d 83 (1967).

No broad right of discovery. Based on this section and §§ 16-8-116 and 16-8-117 and on the special nonadversary nature of a release inquiry, the participants in release proceedings do not have the broad right of discovery as provided in the rules of civil procedure. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976).

Under C.R.C.P. 81(a), the procedure in release hearings under this section is so inconsistent and in conflict with the rules of civil procedure as to make civil discovery rules inapplicable to release hearings. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976).

Discretion of trial court as to procedures. The procedures set out in this section and § 16-8-117 are addressed to the discretion of the trial court and permit all participants to prepare adequately for the hearing. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976).

Upon a proper showing, the trial court may use or authorize the use of suitable discovery procedures reasonably fashioned to elicit facts necessary to help the court dispose of the matter as law and justice may require. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976).

The jury's function ends with its determination whether or not the defendant is eligible for release. People v. Giles, 192 Colo. 240, 557 P.2d 408 (1976); People v. Vialpando, 695 P.2d 1192 (Colo. App. 1984), rev'd on other grounds, 727 P.2d 1090 (Colo. 1986).

The decision whether to impose conditions on release is solely for the court. People v. Giles, 192 Colo. 240, 557 P.2d 408 (1976); People v. Vialpando, 695 P.2d 1192 (Colo. App. 1984), rev'd on other grounds, 727 P.2d 1090 (Colo. 1986).

Where conditional release is appropriate, the terms and conditions must be tailor-made by the court to fit the individual case. It is the court, not the jury, which has the necessary experience and knowledge of available alternatives to perform this function. People v. Giles, 192 Colo. 240, 557 P.2d 408 (1976).

Burden of proof shifts to the defendant in a release hearing once any evidence is introduced that the defendant is not eligible for release. People v. Hilton, 902 P.2d 883 (Colo. App. 1995).

Trial court acted properly in shifting burden of proving eligibility for release to the defendant where state introduced evidence that defendant was not eligible for release because he had an abnormal mental condition. People v. Hilton, 902 P.2d 883 (Colo. App. 1995).

Burden of proof. Where the superintendent of the state hospital recommended the defendant's release from commitment and a release hearing was held, but a jury denied the defendant his release, and he appealed, the appellate court reversed and remanded to the trial court with directions to hold another hearing. The trial court asked the superintendent for an updated report and this time the superintendent recommended that the defendant remain committed. It was perfectly proper for the trial court to order a reexamination of the defendant in order to bring the evidence up to date. As a result the superintendent rendered a contrary opinion, which the defendant contested. Under the plain language of subsection (2) the contestant defendant then had the burden of proof. People v. District Court, 189 Colo. 151, 538 P.2d 469 (1975).

Burden of proof on one seeking release. One who is contesting the recommendation of the custodial institution has the burden of proving by a preponderance of the evidence that he is not likely to be dangerous. People v. Howell, 196 Colo. 408, 586 P.2d 27 (1978).

It is not unconstitutional to require defendant to bear burden of proof that he will not be dangerous in the reasonably foreseeable future in a proceeding under this section. People v. Logan, 196 Colo. 573, 588 P.2d 870 (1979).

Allocation of burden of proof to defendant permissible. In a case of contested eligibility for release the statutory allocation of the burden of proof is permissible because: (1) There will have been a judicial determination of probable cause to believe that the defendant committed the acts charged against him as a crime; (2) there will have been an adjudication that at the time of the commission of the offense the defendant was legally insane; and (3) the chief officer of the institution to which the defendant has been committed will have found him ineligible for release by reason of a mental disease or defect likely to cause him to be dangerous to himself, to others, or to the community, in the reasonably foreseeable future. People v. Chavez, 629 P.2d 1040 (Colo. 1981).

Jury's entitlement to hear all competent evidence relevant to the ultimate issue in the case may include evidence that bears on the likelihood of whether the defendant's release would pose a danger to himself, to others, or to the community in the reasonably foreseeable future. Vialpando v. People, 727 P.2d 1090 (Colo. 1986).

Phrase "any other evidence" in subsection (2) does not mean expert testimony only and may include lay testimony that would indicate that defendant was eligible for release. People v. Howell, 701 P.2d 131 (Colo. App. 1985).

A person found insane as to one time cannot be held to be sane at a subsequent time unless and until there is compliance with the statutory mandates relating to release from commitment. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).

A court cannot find one sane who had previously been found insane unless he is first "released from commitment" pursuant to law. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).

While a finding of insanity as to one time is binding on the courts, such a finding does not mandate a finding of insanity as to an earlier time period. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).

A defendant who is found not guilty by reason of insanity and committed to the department of institutions is not entitled to a release hearing a short time later under this section until there is a showing that some evidence exists tending to demonstrate that the defendant is medically eligible for release. People v. Armstrong, 919 P.2d 826 (Colo. App. 1995).

Although the court must consider a defendant's motion filed more than 180 days from his commitment, and may order the parties to prepare for an evidentiary hearing on defendant's request for release, the hearing need not be held unless the medical documentation is favorable to the defendant or unless the defendant demonstrates in an offer of proof that there is favorable medical evidence to support his release. People v. Armstrong, 919 P.2d 826 (Colo. App. 1995).

Medical report prepared at the time of defendant's plea was not supportive of his contention he was ready to be released because the issue then was whether or not he should be committed not whether or not he should be released. People v. Armstrong, 919 P.2d 826 (Colo. App. 1995).

This section does not apply to a factual situation in which the defendant seeks to remain in the hospital. It merely provides a procedural framework for §§ 16-8-116 and 16-8-117, which are applicable to such a factual situation. People v. Lowe, 967 P.2d 177 (Colo. App. 1998).

When a defendant pleads not guilty by reason of insanity to an offense involving unlawful sexual behavior and is granted conditional release, the court must impose a sex offender registration requirement on the offender. The word "shall" in subsection (4)(a) makes the condition mandatory. The registration requirement is not predicated on a conviction, but rather on the defendant's conditional release and the requirement that registration be mandatory was enacted prior to the offender's conditional release. People v. Durapau, 12 COA 67, 280 P.3d 42.

Applied in Labor v. Gibson, 195 Colo. 416, 578 P.2d 1059 (1978); People v. Benns, 641 P.2d 298 (Colo. App. 1981).