Colorado § 18-1.3-103.5 - Felony convictions - vacate and enter conviction on misdemeanor after successful completion.

§ 18-1.3-103.5. Felony convictions - vacate and enter conviction on misdemeanor after successful completion.

(1) In order to expand opportunities for offenders to avoid a drug felony conviction, to reduce the significant negative consequences of that felony conviction, and to provide positive reinforcement for drug offenders who work to successfully complete any community-based sentence imposed by the court, the legislature hereby creates an additional opportunity for those drug offenders who may not otherwise have been eligible for or successful in other statutorily created programs that allow the drug offender to avoid a felony conviction, such as diversion or deferred judgment.

(2) (a) In a case in which the defendant enters a plea of guilty or is found guilty by the court or a jury for a crime listed in subsection (3) of this section, the court shall order, upon successful completion of any community-based sentence to probation or to a community corrections program, the drug felony conviction vacated and shall enter a conviction for a level 1 drug misdemeanor offense of possession of a controlled substance pursuant to section 18-18-403.5. Upon entry of the judgment of conviction pursuant to section 18-18-403.5, the court shall indicate in its order that the judgment of conviction is entered pursuant to the provisions of this section.

(b) Whether a sentence is successfully completed shall be determined by the court without a jury with notice to the district attorney and the defendant or the defendant's attorney of record. A community-based sentence is not successfully completed if the defendant has not successfully completed the treatment as ordered by the court and determined appropriate to address the defendant's treatment needs.

(3) This section applies to convictions for the following offenses:

(a) On or after March 1, 2020, possession of a controlled substance, but only when the quantity of the controlled substance is not more than four grams of any material, compound, mixture, or preparation containing any quantity of gamma hydroxybutyrate, including its salts, isomers, and salts of isomers; not more than two grams of ketamine or cathinones; or not more than four milligrams of flunitrazepam. The district attorney and defendant may stipulate to the amount of the controlled substance possessed by the defendant at the time of sentencing, or the court shall determine the amount at the time of sentencing.

(b) A level 4 drug felony for distribution pursuant to the provisions of section 18-18-405 (2)(d)(II);

(c) Possession of more than twelve ounces of marijuana or more than three ounces of marijuana concentrate;

(d) A violation of section 18-18-415; or

(e) A violation of section 18-18-403.5 (2.5)(a).

(4) Notwithstanding any provision of this section to the contrary, a defendant is not eligible for relief under this section if:

(a) The defendant has a prior conviction for a crime of violence as described in section 18-1.3-406 or a prior conviction for an offense that is required to be sentenced pursuant to the provisions of section 18-1.3-406 in this state, or a crime in another state, the United States, or any territory subject to the jurisdiction of the United States that would be a crime of violence or an offense required to be sentenced pursuant to the provisions of section 18-1.3-406 in this state;

(b) The defendant is ineligible for probation pursuant to section 18-1.3-201; or

(c) (I) The defendant has two or more prior felony convictions for a drug offense pursuant to this title, or a crime in another state, the United States, or any territory subject to the jurisdiction of the United States that would be a drug offense violation of this title.

(II) For purposes of this paragraph (c), a felony conviction includes any diversion, deferred prosecution, or deferred judgment and sentence, whether or not completed, for a felony, and any conviction entered as a result of relief previously granted pursuant to this section or as a result of a guilty plea to a misdemeanor offense, as described in article 18 of this title, originally charged as a felony drug offense, as described in article 18 of this title.

Source: L. 2013: Entire section added, (SB 13-250), ch. 333, p. 1900, § 1, effective October 1. L. 2014: (2)(a), (3), (4)(a), and (4)(c) amended, (SB 14-163), ch. 391, p. 1971, § 8, effective July 1. L. 2019: (3)(a) amended, (HB 19-1263), ch. 291, p. 2681, § 7, effective March 1, 2020. L. 2022: (3)(c) and (3)(d) amended and (3)(e) added, (HB 22-1326), ch. 225, p. 1651, § 31, effective July 1.

Cross references: For the legislative declaration in HB 22-1326 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to § 2-2-1201 scheduled in 2025, see sections 1 and 55 of chapter 225, Session Laws of Colorado 2022. To obtain a copy of the review, once completed, go to "Legislative Resources and Requirements" on the Colorado General Assembly's website.

ANNOTATION

Court may reduce a defendant's felony conviction to a misdemeanor conviction pursuant to subsection (2)(a) after revoking defendant's probation if the court resentences the defendant to probation and the defendant successfully completes any subsequent community-based probation sentence. People v. Argott, 2021 COA 42, 486 P.3d 500.

The conversion of a defendant's felony conviction to a misdemeanor conviction under this section does not affect the amount of the drug offender surcharge required to be imposed pursuant to § 18-19-103. Under this section, if a defendant successfully completes his or her sentence to probation or community corrections, the court must substitute a misdemeanor conviction for the original felony conviction. The statute, however, does not similarly authorize the court to vacate any part of the defendant's original sentence and re-impose a new sentence. The drug offender surcharge is not an adverse collateral consequence of a drug felony conviction that the statute was designed to ameliorate, but a part of the defendant's sentence. People v. DeBorde, 2016 COA 185, 411 P.3d 220.