Colorado § 19-2.5-1108 - Probation - terms - release - revocation - graduated responses system - rules - report - definition.

§ 19-2.5-1108. Probation - terms - release - revocation - graduated responses system - rules - report - definition.

(1) (a) The terms and conditions of probation must be specified by rules or orders of the court. The court, as a condition of probation for a juvenile who is ten years of age or older but less than eighteen years of age on the date of the sentencing hearing, may impose a commitment or detention. The aggregate length of any such commitment or detention, whether continuous or at designated intervals, must not exceed forty-five days; except that such limit does not apply to any placement out of the home through a county department of human or social services. Each juvenile placed on probation must be given a written statement of the terms and conditions of the juvenile's probation and have the terms and conditions fully explained.

(b) The court, as a condition of probation for a youth eighteen years of age or older at the time of sentencing for delinquent acts committed prior to the youth's eighteenth birthday, may impose as a condition of probation a sentence to the county jail that must not exceed ninety days; except that the sentence may be for a period of up to one hundred eighty days if the court orders the youth released for school attendance, job training, or employment.

(2) (a) Conditions of probation must be customized to each juvenile based on the guidelines developed by the committee on juvenile justice reform pursuant to section 24-33.5-2402, as it existed prior to its repeal in 2022. The court shall, as minimum conditions of probation, order that the juvenile:

(I) Not violate any federal or state statutes, municipal ordinances, or orders of the court;

(II) Not use or possess a firearm, a dangerous or illegal weapon, or an explosive or incendiary device, unless granted written permission by the court or probation officer;

(III) Meet with a probation officer at reasonable times as directed by the court or probation officer. Unless inconsistent with other conditions imposed by the court, the court shall allow a juvenile under the probation officer's supervision to meet with the probation officer at reasonable times through a telephone call or audio-visual communication technology. Unless inconsistent with other conditions imposed by the court, in directing that a juvenile meet with a probation officer at reasonable times, the court or the probation officer shall schedule, in good faith, meetings with the juvenile on probation at mutually agreeable times that do not conflict with the juvenile's essential obligations, including work, education, job training, dependent care, medical appointments, and other probation requirements.

(IV) Permit the probation officer to visit the juvenile at reasonable times at the juvenile's home or elsewhere;

(V) Remain within the jurisdiction of the court, unless granted permission to leave by the court or the probation officer;

(VI) Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment;

(VII) Make restitution as ordered by the court; and

(VIII) and (IX) Repealed.

(X) May be evaluated to determine whether the juvenile would be suitable for restorative justice practices that would be a part of the juvenile's probation program; except that the court may not order participation in restorative justice practices if the juvenile was adjudicated a delinquent for unlawful sexual behavior, as defined in section 16-22-102 (9); 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.

(b) The court shall use the results from a validated risk and needs assessment adopted by the committee on juvenile justice reform pursuant to section 24-33.5-2402, as it existed prior to its repeal in 2022, to inform the court of additional conditions of probation, as necessary.

(3) (a) The court may periodically review the terms and conditions of probation and the progress of each juvenile placed on probation. Counsel for the juvenile does not have to be present at any probation review hearing unless notified by the court that a petition to revoke probation has been filed.

(b) The court may release a juvenile from probation prior to the completion of the juvenile's term of probation, pursuant to this section, or modify the terms and conditions of the juvenile's probation at any time, but a juvenile who has complied satisfactorily with the terms and conditions of the juvenile's probation for a period of two years must be released from probation and the jurisdiction of the court terminated.

(4) Before January 1, 2021, the state court administrator shall establish rules to develop a statewide system of structured community-based graduated responses, including incentives and sanctions, to guide probation officers in determining how best to motivate positive juvenile behavior change and the appropriate response to a violation of terms and conditions of juvenile probation. "Graduated responses" means an accountability-based series of sanctions and services designed to respond to a juvenile's violation of probation quickly, consistently, and proportionally and incentives to motivate positive behavior change and successful completion of probation and treatment goals. Juvenile probation shall adopt and use a state juvenile graduated responses and incentives system developed pursuant to this subsection (4) or develop and use a locally developed system that is aligned to best practices. Policies and procedures for the graduated responses system must:

(a) Include incentives that encourage the completion of treatment milestones as well as compliance with the terms and conditions of a juvenile's probation and that reward behavior aligned with the expectations of supervision and the juvenile's case plan; and

(b) Require that a response to a juvenile's violation of the terms and conditions of the juvenile's supervision take into consideration:

(I) The juvenile's risk to reoffend, as determined by the results of a validated risk and needs assessment;

(II) The previous history of violations and the underlying cause of the juvenile's behavior leading to the violation;

(III) The severity of the current violation;

(IV) The juvenile's case plan; and

(V) The juvenile's previous responses to past violations.

(5) Whenever a probation office has reasonable cause to believe that a juvenile has committed a violation of the terms and conditions of probation and that graduated responses developed pursuant to subsection (4) of this section have previously been applied, or when the nature of the violation poses a substantial risk of serious harm to others, the probation officer, following the approval of the chief probation officer or the chief's designee, shall petition the court for revocation and shall file written information with the court concerning the juvenile's violation behavior history and the responses applied using the graduated response system developed pursuant to subsection (4) of this section.

(6) Unless there is reason to believe that a juvenile would not appear, would interfere with the juvenile justice process, or poses substantial risk of serious harm to others, the probation officer shall issue a summons, or other method approved by local court rule, rather than a warrant when filing a petition for revocation.

(7) The state court administrator shall collect data related to the use of the graduated responses and incentives system developed pursuant to subsection (4) of this section and report the data annually to the judiciary committees of the senate and house of representatives, the health and human services committee of the senate, and the public health care and human services committee of the house of representatives, or any successor committees, and the chief justice of the Colorado supreme court. Notwithstanding section 24-1-136 (11)(a)(I), the reports to the committees continue indefinitely. Data collected by the state court administrator must include, at a minimum, the types of responses and incentives that were issued, the number of formal violations filed, and the behavior resulting in the violation.

(8) (a) When it is alleged that a juvenile has violated the terms and conditions of probation, and graduated responses have been imposed and exhausted, pursuant to subsection (5) of this section, the court shall set a hearing on the alleged violation and shall give notice to the juvenile and the juvenile's parents, guardian, or other legal custodian and any other parties to the proceeding as provided in section 19-2.5-501.

(b) The juvenile and the juvenile's parents, guardian, or other legal custodian must be given a written statement concerning the alleged violation, and have the right to be represented by counsel at the hearing, and are entitled to the issuance of compulsory process for the attendance of witnesses.

(c) When the juvenile has been taken into custody because of the alleged violation, sections 19-2.5-303, 19-2.5-304, and 19-2.5-305 apply.

(d) (I) The hearing on the alleged violation must be conducted pursuant to section 19-1-106.

(II) Pursuant to section 19-2.5-1103, if the court finds that the juvenile violated the terms and conditions of probation, it may modify the terms and conditions of probation, revoke probation, or take such other action permitted by this article 2.5 that is in the best interest of the juvenile and the public.

(III) If the court finds that the juvenile did not violate the terms and conditions of probation as alleged, it shall dismiss the proceedings and continue the juvenile on probation under the terms and conditions previously prescribed.

(e) If the court revokes the probation of a person eighteen years of age or older, in addition to other action permitted by this article 2.5, the court may sentence the person to the county jail for a period not to exceed one hundred eighty days, during which time the person may be released during the day for school attendance, job training, or employment, as ordered by the court; except that, if the sentence imposed exceeds ninety days, the court shall order the person released for school attendance, job training, or employment while serving the sentence.

(9) Following specification of the terms and conditions of probation, where the conditions of probation include requiring the juvenile to attend school, the court shall notify the school district in which the juvenile is enrolled of the requirement.

Source: L. 2021: Entire article added with relocations, (SB 21-059), ch. 136, p. 641, § 2, effective October 1; (2)(a)(VII) amended and (2)(a)(VIII) and (2)(a)(IX) repealed, (HB 21-1315), ch. 461, p. 3119, § 30, effective October 1. L. 2022: IP(2)(a) and (2)(b) amended, (HB 22-1211), ch. 79, p. 394, § 7, effective December 31. L. 2024: (2)(a)(III) amended, (HB 24-1445), ch. 353, p. 2407, § 6, effective September 1.

Editor's note: This section is similar to former § 19-2-925 as it existed prior to 2021.

Cross references: For the legislative declaration in HB 21-1315, see section 1 of chapter 461, Session Laws of Colorado 2021.

ANNOTATION

Law reviews. For article, "Colorado's New Court System", see 41 Den. L. Ctr. J. 140 (1964). For article, "The Mandate to Use Special Education at Juvenile Delinquency Sentencings", see 32 Colo. Law. 99 (Oct. 2003).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Probation is a privilege rather than a right, suspending conditionally what might be a harsher judgment as a contract with the convicted person, made by a court and sanctioned by statute, that he may remain free so long as his conduct is good and he genuinely attempts to rehabilitate himself. People in Interest of B.L.M. v. B.L.M., 31 Colo. App. 106, 500 P.2d 146 (1972).

Granting of probation in lieu of incarceration is act of grace within sound discretion of juvenile court. In re People in Interest of D.S., 31 Colo. App. 300, 502 P.2d 95 (1972).

Court's jurisdiction retained until terminated by court order. A court need not be apprised of a probation violation through the timely filing of a petition to revoke or modify probation to retain jurisdiction. Jurisdiction is retained until terminated by court order. People in Interest of Maddox v. Dist. Court, 198 Colo. 208, 597 P.2d 573 (1979).

Loss of jurisdiction results when the court signs an order terminating probation. The plain language of this section clearly authorizes a juvenile court to release a probationer before the probationary period is completed. The court order is a "release" even if entered by mistake. People in Interest of M.T., 950 P.2d 669 (Colo. App. 1997).

The Colorado rules of civil procedure apply only to juvenile matters that are not governed by the Colorado Children's Code. Therefore, the people's argument that a juvenile court's termination order entered by mistake is without effect pursuant to C.R.C.P. 60 is inapplicable. People in Interest of M.T., 950 P.2d 669 (Colo. App. 1997).

Section provides for review of probation terms. This section provides for review of the terms and conditions of probation at least once each six months. People in Interest of D.R. v. E.R., 29 Colo. App. 525, 487 P.2d 824 (1971).

The power of a court to impose conditions of probation must be strictly construed from the applicable statutes. People v. A.F., 192 Colo. 207, 557 P.2d 418 (1976).

Authority to suspend a sentence of detention entered as a condition of probation is within the power of the juvenile court in imposing the conditions of probation. People in Interest of J.J., 768 P.2d 754 (Colo. App. 1988).

No authority to impose limited confinement in county jail as condition of probation. A juvenile court does not have the statutory authority to impose a limited or partial confinement in county jail as a condition of probation for a juvenile under 18 years of age. People v. A.F., 192 Colo. 207, 557 P.2d 418 (1976).

Trial court erred in interpreting § 19-2-907 (1) as allowing the combination of a one-year term of commitment followed by a one-year term of probation. Although the aggregate length of the combined sentence imposed by the court did not exceed two years, the period of commitment exceeded the 45-day aggregate maximum described in subsection (1)(a) of this section. People in Interest of J.S.R., 2014 COA 98M, 338 P.3d 1088.

Section meets requirements of due process. Because subsection (4) requires notice and a hearing in cases of alleged violation of juvenile probation and because the prosecution must establish the alleged criminal offense beyond a reasonable doubt, the statutory scheme by which probation revocation triggers mandatory sentence offender status does not deny due process. People in Interest of D.G., 733 P.2d 1199 (Colo. 1987).

Due process requirements met even though findings of fact were inadequate because general record supports revocation of probation. Even though trial court's findings of fact concerning ability of child to pay restitution were inadequate to revoke probation on that ground, record supports revocation of child's probation on other grounds and is consistent with due process requirements of fundamental fairness and appellate court will not set aside revocation where court's general finding is adequate. People in Interest of C.J.W., 727 P.2d 870 (Colo. App. 1986).

Section provides notice and hearing before revocation. In the event that a child violates the terms and conditions of a child in need of supervision probation, this section provides for notice to the child, his parents, guardian, or other legal custodian, and a full hearing on the matter to determine whether these conditions and terms were in fact violated. People in Interest of D.R. v. E.R., 29 Colo. App. 525, 487 P.2d 824 (1971).

But probation revocation hearings are not adjudicatory hearings. In re People in Interest of D.S., 31 Colo. App. 300, 502 P.2d 95 (1972).

And dispositional hearing and social study not required. Where hearing emanated from petition to revoke probation of child and not from petition for delinquency adjudication or in need of supervision, child was not entitled to dispositional hearing and social study. People in Interest of B.L.M. v. B.L.M., 31 Colo. App. 106, 500 P.2d 146 (1972).

Question of whether probation shall be revoked is within sound discretion of judge. People in Interest of B.L.M. v. B.L.M., 31 Colo. App. 106, 500 P.2d 146 (1972).

Revocation justified upon commission of criminal acts. Where a court finds that a child on probation has committed acts which if committed by an adult would be crimes, these findings are sufficient to justify revocation of probation, and the fact that they were filed subsequent to the order recommitting the child and directing issuance of the mittimus is not prejudicial. People in Interest of B.L.M. v. B.L.M., 31 Colo. App. 106, 500 P.2d 146 (1972).

Where juvenile court judge is convinced that minor whose probation terms include requirements that he violate no law has been involved in bicycle theft, has been accessory after or during fact, or has engaged in joyriding, judge is justified in revoking probation. In re People in Interest of D.S., 31 Colo. App. 300, 502 P.2d 95 (1972).

Burden of proof for probation violations which constitute adult crimes. Minimal due process guarantees of fundamentally fair procedures require no less than proof "beyond a reasonable doubt" of juvenile probation violations based upon alleged acts which would constitute crimes if done by adults. People in Interest of C.B., 196 Colo. 362, 585 P.2d 281 (1978).

The standard of proof required in juvenile probation revocation hearings is proof beyond a reasonable doubt of violations based upon alleged acts which would constitute crimes if done by an adult. People in Interest of G.L., 631 P.2d 1118 (Colo. 1981).

Revocation of probation is not equivalent to finding of guilt on charges alleged in revocation petition. In re People in Interest of D.S., 31 Colo. App. 300, 502 P.2d 95 (1972).

Review of probation violation is exclusive. As to those acts of a child in violation of child in need of supervision probation which are not denominated as acts of delinquency, the method of review in this section was intended to be exclusive. People in Interest of D.R. v. E.R., 29 Colo. App. 525, 487 P.2d 824 (1971).

Effect of breach of probation. A probationer is charged with the knowledge that a breach of probationary terms will result in a revocation of probation and a subsequent sentence. People in Interest of B.L.M. v. B.L.M., 31 Colo. App. 106, 500 P.2d 146 (1972).

Revoking juvenile's probation does not undertake to punish him for new offense. Rather, it is imposition of sentence for earlier adjudication. In re People in Interest of D.S., 31 Colo. App. 300, 502 P.2d 95 (1972).

Standard of proof. The same standard of proof that obtains in adult probation revocation hearings, i.e., beyond a reasonable doubt, should also apply in juvenile proceedings. People in Interest of C.B., 40 Colo. App. 43, 572 P.2d 843 (1977).

Admissibility of hearsay statements. In probation revocation hearing trial court is not bound by strict rules of evidence and even if hearsay statements are improperly admitted a presumption arises that the evidence was disregarded and, therefore, trial court did not err in admitting testimony which in part consisted of hearsay. People in Interest of C.J.W., 727 P.2d 870 (Colo. App. 1986).

Alternative dispositions permitted. When a violation of probation has been established, the court is permitted a range of alternative dispositions, including any delineated in the respective sections of the code. People in Interest of C.B., 40 Colo. App. 43, 572 P.2d 840 (1977).

Issue preclusion does not apply to bar the right of a defendant to a trial where defendant had been charged with the crime of driving with a revoked license, which constituted both a violation of his probation and a new criminal act. Defendant did not have a full and fair opportunity to litigate the issue in the probation revocation hearing. A determination of guilt or innocence in a probation revocation hearing would undermine the function of the criminal trial process. Byrd v. People, 58 P.3d 50 (Colo. 2002).

Probation revocation hearings are held for different purposes, governed by different procedures, and do not protect a defendant's rights as does a criminal trial. Byrd v. People, 58 P.3d 50 (Colo. 2002).

Applied in People in Interest of R.J.A., 38 Colo. App. 346, 556 P.2d 491 (1976).