When the law states a crime that affects the elderly what is the minimum age for the elderly person?
Full Question:
Answer:
The following are Colorado statutes:
16-1-104. Definitions.
(1) The following definitions in this section are applicable generally in
this code. Other terms which need definition, but which are used only in a
limited number of sections of this code are defined in the particular
section or article in which the terms appear. Definitions set forth in any
section of this code are applicable whenever the same term is used in the
same sense in another section of this code, unless the definition is
specifically limited or the context indicates that it is inapplicable.
(2) "Arraignment" means the formal act of calling the defendant into open
court, informing him of the offense with which he is charged, and the entry
of a plea to the charge.
(3) "Bail" means the amount of money set by the court which is required
to be obligated by a bond for the release of a person in custody to
assure that he will appear before the court in which his appearance is
required or that he will comply with other conditions set forth in a
bond.
(4) "Bind over" means to require a defendant, following a preliminary
hearing, to appear and answer in a court having jurisdiction to try the
defendant for the crime with which he is charged.
(5) "Bond" means an undertaking, with or without sureties or security,
entered into by a person in custody by which he binds himself to comply
with the conditions of the undertaking and in default of such compliance to
pay the amount of bail or other sum fixed in the bond.
(6) "Charge" means a formal written statement presented to a court
accusing a person of the commission of a crime. The charge may be made by
complaint, information, or indictment.
(7) "Complaint" means a written statement charging the commission of a
crime by an alleged offender, filed in the county court.
(7.5) "Correctional facility" means any facility under the supervision of
the department of corrections in which persons are or may be lawfully held
in custody as a result of conviction of a crime.
(8) "Court of record" means any court except a municipal court unless
otherwise defined by a particular section.
(8.5) (a) (I) "Crime of violence" means a crime in which the defendant
used, or possessed and threatened the use of, a deadly weapon during the
commission or attempted commission of any crime committed against an
elderly person or a person with a disability or a crime of murder, first or
second degree assault, kidnapping, sexual assault, robbery, first degree
arson, first or second degree burglary, escape, or criminal extortion, or
during the immediate flight therefrom, or the defendant caused serious
bodily injury or death to any person, other than himself or herself or
another participant, during the commission or attempted commission of any
such felony or during the immediate flight therefrom.
(II) "Crime of violence" also means any unlawful sexual offense in which
the defendant caused bodily injury to the victim or in which the defendant
used threat, intimidation, or force against the victim. For purposes of
this subparagraph (II), "unlawful sexual offense" shall have the same
meaning as set forth in section 18-3-411(1), C.R.S., and "bodily injury"
shall have the same meaning as set forth in section 18-1-901(3)(c),
C.R.S.
(III) The provisions of subparagraph (II) of this paragraph (a) shall
apply only to felony unlawful sexual offenses.
(b) As used in this subsection (8.5), "elderly person" means a person who
is sixty years of age or older. "Person with a disability" means a person
who is disabled because of the loss of or permanent loss of use of a hand
or foot or because of blindness or the permanent impairment of vision in
both eyes to such a degree as to constitute virtual blindness.
(9) "Custody" means the restraint of a person's freedom in any
significant way.
(10) "Felony complaint" means a written statement of the essential facts
constituting the offense charged and shall be made upon oath before any
person authorized to administer oaths within the state of Colorado.
(11) "Indictment" means a written statement, presented by a grand jury to
the district court, which charges the commission of a crime by an alleged
offender.
(12) "Information" means a written statement signed by a district
attorney presented to the district court, which charges the commission of
a crime by an alleged offender.
(13) "Personal recognizance" means a bond secured only by the personal
obligation of the person giving the bond.
(14) "Preliminary hearing" means a hearing on a complaint filed in the
county court or an information filed in the district court, to determine if
there is probable cause to believe that an offense has been committed and
that the person charged committed it.
(15) "Prosecuting attorney" means any attorney who is authorized to
appear for and on behalf of the state of Colorado in a criminal case.
(16) A "search warrant" is a written order made by a judge of a court of
record commanding a peace officer to search the person, premises, place,
property, or thing described in the search warrant and to seize property
described or identified therein.
(17) "Summons" means a written order or notice directing that a person
appear before a designated court at a stated time and place and answer to a
charge against him.
(18) A "warrant" is a written order issued by a judge of a court of
record directed to any peace officer commanding the arrest of the person
named or described in the order.
18-1.3-501. Misdemeanors classified — penalties.
(1)(a) Misdemeanors are divided into three classes which are
distinguished from one another by the following penalties which are
authorized upon conviction except as provided in subsection (1.5) of this
section:
Class Minimum Sentence Maximum Sentence
1 Six months imprisonment, or five Eighteen months imprisonment,
hundred dollars fine, or both or five thousand dollars fine,
or both
2 Three months imprisonment, or two Twelve months imprisonment,
hundred fifty dollars fine, or both or one thousand dollars fine,
or both
3 Fifty dollars fine Six months imprisonment, or
seven hundred fifty dollars
fine, or both
(b) A term of imprisonment for conviction of a misdemeanor shall not be
served in a state correctional facility unless served concurrently with a
term for conviction of a felony.
(c) A term of imprisonment in a county jail for a conviction of a
misdemeanor, petty, or traffic misdemeanor offense shall not be ordered to
be served consecutively to a sentence to be served in a state correctional
facility; except that if, at the time of sentencing, the court determines,
after consideration of all the relevant facts and circumstances, that a
concurrent sentence is not warranted, the court may order that the
misdemeanor sentence be served prior to the sentence to be served in the
state correctional facility and prior to the time the defendant is
transported to the state correctional facility to serve all or the
remainder of the defendant's state correctional facility sentence.
(1.5) (a) If a defendant is convicted of assault in the third degree
pursuant to section 18-3-204 and the victim is a peace officer or
firefighter engaged in the performance of his or her duties,
notwithstanding the provisions of subsection (1) of this section, the
court shall sentence the defendant to a term of imprisonment greater than
the maximum sentence but no more than twice the maximum sentence
authorized for the same crime when the victim is not a peace officer or
firefighter engaged in the performance of his or her duties. In addition
to such term of imprisonment, the court may impose a fine on the
defendant pursuant to subsection (1) of this section.
(b) As used in this section, "peace officer or firefighter engaged in the
performance of his or her duties" means a peace officer as described in
section 16-2.5-101, C.R.S., or a firefighter as defined in section 18-3-201
(1) who is engaged or acting in, or who is present for the purpose of
engaging or acting in, the performance of any duty, service, or function
imposed, authorized, required, or permitted by law to be performed by a
peace officer or firefighter, whether or not the peace officer or
firefighter is within the territorial limits of his or her jurisdiction, if
the peace officer or firefighter is in uniform or the person committing an
assault upon or offense against or otherwise acting toward such peace
officer or firefighter knows or reasonably should know that the victim is a
peace officer or firefighter or if the peace officer or firefighter is
intentionally assaulted in retaliation for the performance of his or her
official duties.
(1.7) (a) If a defendant is convicted of assault in the third degree
pursuant to section 18-3-204 or reckless endangerment pursuant to section
18-3-208 and the victim is a mental health professional employed by or
under contract with the department of human services engaged in the
performance of his or her duties, notwithstanding the provisions of
subsection (1) of this section, the court may sentence the defendant to a
term of imprisonment greater than the maximum sentence but not more than
twice the maximum sentence authorized for the crime when the victim is not
a mental health professional employed by or under contract with the
department of human services engaged in the performance of his or her
duties. In addition to a term of imprisonment, the court may impose a fine
on the defendant pursuant to subsection (1) of this section.
(b) "Mental health professional" means a mental health professional as
defined in section 16-8-202(6), C.R.S., a person licensed as a nurse
pursuant to part 1 of article 38 of title 12, C.R.S., a nurse aide
certified pursuant to part 1 of article 38.1 of title 12, C.R.S., and a
psychiatric technician licensed pursuant to part 1 of article 42 of title
12, C.R.S.
(2) The defendant may be sentenced to perform a certain number of hours
of community or useful public service in addition to any other sentence
provided by subsection (1) of this section, subject to the conditions and
restrictions of section 18-1.3-507. An inmate in county jail acting as a
trustee shall not be given concurrent credit for community or useful
public service when such service is performed in his or her capacity as
trustee. For the purposes of this subsection (2), "community or useful
public service" means any work which is beneficial to the public, any
public entity, or any bona fide nonprofit private or public organization,
which work involves a minimum of direct supervision or other public cost
and which work would not, with the exercise of reasonable care, endanger
the health or safety of the person required to work.
(3)(a) The general assembly hereby finds that certain misdemeanors which
are listed in paragraph (b) of this subsection (3) present an extraordinary
risk of harm to society and therefore, in the interest of public safety,
the maximum sentence for such misdemeanors shall be increased by six
months.
(b) Misdemeanors that present an extraordinary risk of harm to society
shall include the following:
(I) Assault in the third degree, as defined in section 18-3-204;
(I.5) (A) Sexual assault, as defined in section 18-3-402; or
(B) Sexual assault in the second degree, as defined in section 18-3-403,
as it existed prior to July 1, 2000;
(II) (A) Unlawful sexual contact, as defined in section 18-3-404; or
(B) Sexual assault in the third degree, as defined in section 18-3-404,
as it existed prior to July 1, 2000;
(III) Child abuse, as defined in section 18-6-401(7)(a) (V);
(IV) Second and all subsequent violations of a protection order as
defined in section 18-6-803.5 (1.5) (a.5); and
(V) Misdemeanor failure to register as a sex offender, as described in
section 18-3-412.5.
(4) Notwithstanding any provision of law to the contrary, any person who
attempts to commit, conspires to commit, or commits against an elderly
person any misdemeanor set forth in part 4 of article 4 of this title, in
part 1, 2, 3, or 5 of article 5 of this title, or article 5.5 of this title
shall be required to pay a mandatory and substantial fine within the limits
permitted by law. However, all moneys collected from the offender shall be
applied in the following order: Costs for crime victims compensation fund
pursuant to section 24-4.1-119, C.R.S.; surcharges for victims and
witnesses assistance and law enforcement fund pursuant to section
24-4.2-104, C.R.S.; restitution; time payment fee; late fees; and any other
fines, fees, or surcharges. For purposes of this subsection (4), an
"elderly person" or "elderly victim" means a person sixty years of age or
older.
(5) Every sentence entered under this section shall include consideration
of restitution as required by part 6 of this article and by article 18.5 of
title 16, C.R.S.
(6) For a defendant who is convicted of assault in the third degree, as
described in section 18-3-204, the court, in addition to any fine the court
may impose, shall sentence the defendant to a term of imprisonment of at
least six months, but not longer than the maximum sentence authorized for
the offense, as specified in this section, which sentence shall not be
suspended in whole or in part, if the court makes the following findings on
the record:
(a) The victim of the offense was pregnant at the time of commission of
the offense; and
(b) The defendant knew or should have known that the victim of the
offense was pregnant.
(c) (Deleted by amendment, L. 2003, p. 2163, § 4, effective July 1,
2003.)
18-1.3-401. Felonies classified — presumptive penalties.
(1)(a) (I) As to any person sentenced for a felony committed after July
1, 1979, and before July 1, 1984, felonies are divided into five classes
which are distinguished from one another by the following presumptive
ranges of penalties which are authorized upon conviction:
Class Presumptive Range
1 Life imprisonment or death
2 Eight to twelve years plus one year of parole
3 Four to eight years plus one year of parole
4 Two to four years plus one year of parole
5 One to two years plus one year of parole
(II) As to any person sentenced for a felony committed on or after July
1, 1984, and before July 1, 1985, felonies are divided into five classes
which are distinguished from one another by the following presumptive
ranges of penalties which are authorized upon conviction:
Class Presumptive Range
1 Life imprisonment or death
2 Eight to twelve years
3 Four to eight years
4 Two to four years
5 One to two years
(III) (A) As to any person sentenced for a felony committed on or after
July 1, 1985, except as otherwise provided in sub-subparagraph (E) of this
subparagraph (III), in addition to, or in lieu of, any sentence to
imprisonment, probation, community corrections, or work release, a fine
within the following presumptive ranges may be imposed for the specified
classes of felonies:
Class Minimum Sentence Maximum Sentence
1 No fine No fine
2 Five thousand dollars One million dollars
3 Three thousand dollars Seven hundred fifty thousand dollars
4 Two thousand dollars Five hundred thousand dollars
5 One thousand dollars One hundred thousand dollars
6 One thousand dollars One hundred thousand dollars
(A.5) Notwithstanding any provision of law to the contrary, any person
who attempts to commit, conspires to commit, or commits against an
elderly person any felony set forth in part 4 of article 4 of this
title, in part 1, 2, 3, or 5 of article 5 of this title, article 5.5 of
this title, or section 11-51-603, C.R.S., shall be required to pay a
mandatory and substantial fine within the limits permitted by law.
However, all moneys collected from the offender shall be applied in the
following order: Costs for crime victims compensation fund pursuant to
section 24-4.1-119, C.R.S.; surcharges for victims and witnesses
assistance and law enforcement fund pursuant to section 24-4.2-104,
C.R.S.; restitution; time payment fee; late fees; and any other fines,
fees, or surcharges. For purposes of this sub-subparagraph (A.5), an
"elderly person" or "elderly victim" means a person sixty years of age or
older.
(B) Failure to pay a fine imposed pursuant to this subparagraph (III) is
grounds for revocation of probation or revocation of a sentence to
community corrections, assuming the defendant's ability to pay. If such a
revocation occurs, the court may impose the maximum sentence allowable in
the given sentencing ranges.
(C) Each judicial district shall have at least one clerk who shall
collect and administer the fines imposed under this subparagraph (III)
and under section 18-1.3-501 in accordance with the provisions of
sub-subparagraph (D) of this subparagraph (III).
(D) All fines collected pursuant to this subparagraph (III) shall be
deposited in the fines collection cash fund, which fund is hereby created.
The general assembly shall make annual appropriations out of such fund for
administrative and personnel costs incurred in the collection and
administration of said fines. All unexpended balances shall revert to the
general fund at the end of each fiscal year.
(E) Notwithstanding the provisions of sub-subparagraph (A) of this
subparagraph (III), 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 shall not be eligible to
receive a fine in lieu of any sentence to imprisonment, community
corrections, or work release but shall be sentenced to at least the minimum
sentence specified in subparagraph (V) of this paragraph (a) and may
receive a fine in addition to said sentence.
(IV) As to any person sentenced for a felony committed on or after July
1, 1985, but prior to July 1, 1993, felonies are divided into six classes
which are distinguished from one another by the following presumptive
ranges of penalties which are authorized upon conviction:
Class Minimum Sentence Maximum Sentence
1 Life imprisonment Death
2 Eight years imprisonment Twenty-four years imprisonment
3 Four years imprisonment Sixteen years imprisonment
4 Two years imprisonment Eight years imprisonment
5 One year imprisonment Four years imprisonment
6 One year imprisonment Two years imprisonment
(V) (A) As to any person sentenced for a felony committed on or after
July 1, 1993, felonies are divided into six classes which are
distinguished from one another by the following presumptive ranges of
penalties which are authorized upon conviction:
Class Minimum Maximum Mandatory Period
Sentence Sentence of Parole
1 Life imprisonment Death None
2 Eight years Twenty-four years Five years
imprisonment imprisonment
3 Four years Twelve years Five years
imprisonment imprisonment
4 Two years Six years Three years
imprisonment imprisonment
5 One year Three years Two years
imprisonment imprisonment
6 One year Eighteen months One year
(B) Any person who is paroled pursuant to section 17-22.5-403, C.R.S., or
any person who is not paroled and is discharged pursuant to law, shall be
subject to the mandatory period of parole established pursuant to
sub-subparagraph (A) of this subparagraph (V). Such mandatory period of
parole may not be waived by the offender or waived or suspended by the
court and shall be subject to the provisions of section 17-22.5-403(8),
C.R.S., which permits the state board of parole to discharge the offender
at any time during the term of parole upon a determination that the
offender has been sufficiently rehabilitated and reintegrated into society
and can no longer benefit from parole supervision.
(C) Notwithstanding sub-subparagraph (A) of this subparagraph (V), the
mandatory period of parole for a person convicted of a felony offense
committed prior to July 1, 1996, pursuant to part 4 of article 3 of this
title, or part 3 of article 6 of this title, shall be five years.
Notwithstanding sub-subparagraph (A) of this subparagraph (V), and except
as otherwise provided in sub-subparagraph (C.5) of this subparagraph (V),
the period of parole for a person convicted of a felony offense committed
on or after July 1, 1996, but prior to July 1, 2002, pursuant to part 4 of
article 3 of this title, or part 3 of article 6 of this title, shall be set
by the state board of parole pursuant to section 17-2-201(5) (a.5),
C.R.S., but in no event shall the term of parole exceed the maximum
sentence imposed upon the inmate by the court.
(C.3) (Deleted by amendment, L. 2002, p. 124, § 1, effective March 26,
2002.)
(C.5) Notwithstanding the provisions of sub-subparagraph (A) of this
subparagraph (V), any person sentenced for a sex offense, as defined in
section 18-1.3-1003(5), committed on or after November 1, 1998, shall be
sentenced pursuant to the provisions of part 10 of this article.
(C.7) Any person sentenced for a felony committed on or after July 1,
2002, involving unlawful sexual behavior, as defined in section 16-22-102
(9), C.R.S., or for a felony, committed on or after July 1, 2002, the
underlying factual basis of which involved unlawful sexual behavior, and
who is not subject to the provisions of part 10 of article 1.3 of this
title, shall be subject to the mandatory period of parole specified in
sub-subparagraph (A) of this subparagraph (V).
(D) The mandatory period of parole imposed pursuant to sub-subparagraph
(A) of this subparagraph (V) shall commence immediately upon the discharge
of an offender from imprisonment in the custody of the department of
corrections. If the offender has been granted release to parole supervision
by the state board of parole, the offender shall be deemed to have
discharged the offender's sentence to imprisonment provided for in
sub-subparagraph (A) of this subparagraph (V) in the same manner as if such
sentence were discharged pursuant to law; except that the sentence to
imprisonment for any person sentenced as a sex offender pursuant to part 10
of this article shall not be deemed discharged on release of said person on
parole. When an offender is released by the state board of parole or
released because the offender's sentence was discharged pursuant to law,
the mandatory period of parole shall be served by such offender. An
offender sentenced for nonviolent felony offenses, as defined in section
17-22.5-405(5), C.R.S., may receive earned time pursuant to section
17-22.5-405, C.R.S., while serving a mandatory parole period in accordance
with this section but not while such offender is reincarcerated after a
revocation of the mandatory period of parole.
(E) If an offender is sentenced consecutively for the commission of two
or more felony offenses pursuant to sub-subparagraph (A) of this
subparagraph (V), the mandatory period of parole for such offender shall
be the mandatory period of parole established for the highest class
felony of which such offender has been convicted.
(VI) Any person sentenced for a class 2, 3, 4, or 5 felony, or a class 6
felony that is the offender's second or subsequent felony offense,
committed on or after July 1, 1998, regardless of the length of the
person's sentence to incarceration and the mandatory period of parole,
shall not be deemed to have fully discharged his or her sentence until said
person has either completed or been discharged by the state board of parole
from the mandatory period of parole imposed pursuant to subparagraph (V) of
this paragraph (a).
(b) (I) Except as provided in subsection (6) and subsection (8) of this
section and in section 18-1.3-804, a person who has been convicted of a
class 2, class 3, class 4, class 5, or class 6 felony shall be punished by
the imposition of a definite sentence which is within the presumptive
ranges set forth in paragraph (a) of this subsection (1). In imposing the
sentence within the presumptive range, the court shall consider the nature
and elements of the offense, the character and record of the offender, and
all aggravating or mitigating circumstances surrounding the offense and the
offender. The prediction of the potential for future criminality by a
particular defendant, unless based on prior criminal conduct, shall not be
considered in determining the length of sentence to be imposed.
(II) As to any person sentenced for a felony committed on or after July
1, 1985, a person may be sentenced to imprisonment as described in
subparagraph (I) of this paragraph (b) or to pay a fine that is within
the presumptive ranges set forth in subparagraph (III) of paragraph (a)
of this subsection (1) or to both such fine and imprisonment; except that
any 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 shall not be eligible to receive a
fine in lieu of any sentence to imprisonment as described in subparagraph
(I) of this paragraph (b) but shall be sentenced to at least the minimum
sentence specified in subparagraph (V) of paragraph (a) of this
subsection (1) and may receive a fine in addition to said sentence.
(II.5) Notwithstanding anything in this section to the contrary, any
person sentenced for a sex offense, as defined in section 18-1.3-1003(5),
committed on or after November 1, 1998, may be sentenced to pay a fine in
addition to, but not instead of, a sentence for imprisonment or probation
pursuant to section 18-1.3-1004.
(III) Notwithstanding anything in this section to the contrary, as to any
person sentenced for a crime of violence, as defined in section 18-1.3-406,
committed on or after July 1, 1985, a person may be sentenced to pay a fine
in addition to, but not instead of, a sentence for imprisonment.
(IV) If a person is convicted of assault in the first degree pursuant to
section 18-3-202 or assault in the second degree pursuant to section
18-3-203 and the victim is a peace officer or firefighter engaged in the
performance of his or her duties, as defined in section 18-1.3-501 (1.5)
(b), notwithstanding the provisions of subparagraph (III) of paragraph (a)
of this subsection (1) and subparagraph (II) of this paragraph (b), the
court shall sentence the person to the department of corrections. In
addition to a term of imprisonment, the court may impose a fine on such
person pursuant to subparagraph (III) of paragraph (a) of this subsection
(1).
(c) Except as otherwise provided by statute, felonies are punishable by
imprisonment in any correctional facility under the supervision of the
executive director of the department of corrections. Nothing in this
section shall limit the authority granted in part 8 of this article to
increase sentences for habitual criminals. Nothing in this section shall
limit the authority granted in parts 9 and 10 of this article to sentence
sex offenders to the department of corrections or to sentence sex offenders
to probation for an indeterminate term. Nothing in this section shall limit
the authority granted in section 18-1.3-804 for increased sentences for
habitual burglary offenders.
(2)(a) A corporation which has been found guilty of a class 2 or class 3
felony shall be subject to imposition of a fine of not less than five
thousand dollars nor more than fifty thousand dollars. A corporation which
has been found guilty of a class 4, class 5, or class 6 felony shall be
subject to imposition of a fine of not less than one thousand dollars nor
more than thirty thousand dollars.
(b) A corporation which has been found guilty of a class 2, class 3,
class 4, class 5, or class 6 felony, for an act committed on or after
July 1, 1985, shall be subject to imposition of a fine which is within
the presumptive ranges set forth in subparagraph (III) of paragraph (a)
of subsection (1) of this section.
(3) Every person convicted of a felony, whether defined as such within or
outside this code, shall be disqualified from holding any office of honor,
trust, or profit under the laws of this state or from practicing as an
attorney in any of the courts of this state during the actual time of
confinement or commitment to imprisonment or release from actual
confinement on conditions of probation. Upon his or her discharge after
completion of service of his or her sentence or after service under
probation, the right to hold any office of honor, trust, or profit shall be
restored, except as provided in section 4 of article XII of the state
constitution.
(4)(a) A person who has been convicted of a class 1 felony shall be
punished by life imprisonment in the department of corrections unless a
proceeding held to determine sentence according to the procedure set forth
in section 18-1.3-1201, 18-1.3-1302, or 18-1.4-102, results in a verdict
that requires imposition of the death penalty, in which event such person
shall be sentenced to death. As to any person sentenced for a class 1
felony, for an act committed on or after July 1, 1985, and before July 1,
1990, life imprisonment shall mean imprisonment without the possibility of
parole for forty calendar years. As to any person sentenced for a class 1
felony, for an act committed on or after July 1, 1990, life imprisonment
shall mean imprisonment without the possibility of parole.
(b) (I) Notwithstanding the provisions of sub-subparagraph (A) of
subparagraph (V) of paragraph (a) of subsection (1) of this section and
notwithstanding the provisions of paragraph (a) of this subsection (4), as
to a person who is convicted as an adult of a class 1 felony following
direct filing of an information or indictment in the district court
pursuant to section 19-2-517, C.R.S., or transfer of proceedings to the
district court pursuant to section 19-2-518, C.R.S., the district court
judge shall sentence the person to a term of life imprisonment with the
possibility of parole after serving a period of forty calendar years.
Regardless of whether the state board of parole releases the person on
parole, the person shall remain in the legal custody of the department of
corrections for the remainder of the person's life and shall not be
discharged.
(II) The provisions of this paragraph (b) shall apply to persons
sentenced for offenses committed on or after July 1, 2006.
(5) In the event the death penalty as provided for in this section is
held to be unconstitutional by the Colorado supreme court or the United
States supreme court, a person convicted of a crime punishable by death
under the laws of this state shall be punished by life imprisonment. In
such circumstance, the court which previously sentenced a person to death
shall cause such person to be brought before the court, and the court
shall sentence such person to life imprisonment.
(6) In imposing a sentence to incarceration, the court shall impose a
definite sentence which is within the presumptive ranges set forth in
subsection (1) of this section unless it concludes that extraordinary
mitigating or aggravating circumstances are present, are based on evidence
in the record of the sentencing hearing and the presentence report, and
support a different sentence which better serves the purposes of this code
with respect to sentencing, as set forth in section 18-1-102.5. If the
court finds such extraordinary mitigating or aggravating circumstances, it
may impose a sentence which is lesser or greater than the presumptive
range; except that in no case shall the term of sentence be greater than
twice the maximum nor less than one-half the minimum term authorized in the
presumptive range for the punishment of the offense.
(7) In all cases, except as provided in subsection (8) of this
section, in which a sentence which is not within the presumptive range is
imposed, the court shall make specific findings on the record of the
case, detailing the specific extraordinary circumstances which constitute
the reasons for varying from the presumptive sentence.
(8)(a) The presence of any one or more of the following extraordinary
aggravating circumstances shall require the court, if it sentences the
defendant to incarceration, to sentence the defendant to a term of at least
the midpoint in the presumptive range but not more than twice the maximum
term authorized in the presumptive range for the punishment of a felony:
(I) The defendant is convicted of a crime of violence under section
18-1.3-406;
(II) The defendant was on parole for another felony at the time of
commission of the felony;
(III) The defendant was on probation or was on bond while awaiting
sentencing following revocation of probation for another felony at the time
of the commission of the felony;
(IV) The defendant was under confinement, in prison, or in any
correctional institution as a convicted felon, or an escapee from any
correctional institution for another felony at the time of the commission
of a felony;
(V) At the time of the commission of the felony, the defendant was on
appeal bond following his or her conviction for a previous felony;
(VI) At the time of the commission of a felony, the defendant was on
probation for or on bond while awaiting sentencing following revocation of
probation for a delinquent act that would have constituted a felony if
committed by an adult.
(b) In any case in which one or more of the extraordinary aggravating
circumstances provided for in paragraph (a) of this subsection (8) exist,
the provisions of subsection (7) of this section shall not apply.
(c) Nothing in this subsection (8) shall preclude the court from
considering aggravating circumstances other than those stated in paragraph
(a) of this subsection (8) as the basis for sentencing the defendant to a
term greater than the presumptive range for the felony.
(d) (I) If the defendant is convicted of the class 2 or the class 3
felony of child abuse under section 18-6-401(7)(a) (I) or (7)(a) (III),
the court shall be required to sentence the defendant to the department
of corrections for a term of at least the midpoint in the presumptive
range but not more than twice the maximum term authorized in the
presumptive range for the punishment of that class felony.
(II) In no case shall any defendant sentenced pursuant to subparagraph
(I) of this paragraph (d) be eligible for suspension of sentence or for
probation or deferred prosecution.
(e) (I) If the defendant is convicted of the class 2 felony of sexual
assault in the first degree under section 18-3-402(3), commission of which
offense occurs prior to November 1, 1998, the court shall be required to
sentence the defendant to a term of at least the midpoint in the
presumptive range but not more than twice the maximum term authorized in
the presumptive range for the punishment of that class of felony.
(II) In no case shall any defendant sentenced pursuant to subparagraph
(I) of this paragraph (e) be eligible for suspension of sentence or
probation.
(III) As a condition of parole under section 17-2-201(5)(e), C.R.S., a
defendant sentenced pursuant to this paragraph (e) shall be required to
participate in a program of mental health counseling or receive appropriate
treatment to the extent that the state board of parole deems appropriate to
effectuate the successful reintegration of the defendant into the community
while recognizing the need for public safety.
(e.5) If the defendant is convicted of the class 2 felony of sexual
assault under section 18-3-402(5) or the class 2 felony of sexual assault
in the first degree under section 18-3-402(3) as it existed prior to July
1, 2000, commission of which offense occurs on or after November 1, 1998,
the court shall be required to sentence the defendant to the department of
corrections for an indeterminate sentence of at least the midpoint in the
presumptive range for the punishment of that class of felony up to the
defendant's natural life.
(f) The court may consider aggravating circumstances such as serious
bodily injury caused to the victim or the use of a weapon in the commission
of a crime, notwithstanding the fact that such factors constitute elements
of the offense.
(g) If the defendant is convicted of class 4 or class 3 felony vehicular
homicide under section 18-3-106(1)(a) or (1)(b), and while committing
vehicular homicide the defendant was in immediate flight from the
commission of another felony, the court shall be required to sentence the
defendant to the department of corrections for a term of at least the
midpoint in the presumptive range but not more than twice the maximum term
authorized in the presumptive range for the punishment of the class of
felony vehicular homicide of which the defendant is convicted.
(9) The presence of any one or more of the following sentence-enhancing
circumstances shall require the court, if it sentences the defendant to
incarceration, to sentence the defendant to a term of at least the minimum
in the presumptive range but not more than twice the maximum term
authorized in the presumptive range for the punishment of a felony:
(a) At the time of the commission of the felony, the defendant was
charged with or was on bond for a felony in a previous case and the
defendant was convicted of any felony in the previous case;
(a.5) At the time of the commission of the felony, the defendant was
charged with or was on bond for a delinquent act that would have
constituted a felony if committed by an adult;
(b) At the time of the commission of the felony, the defendant was on
bond for having pled guilty to a lesser offense when the original offense
charged was a felony;
(c) The defendant was under a deferred judgment and sentence for another
felony at the time of the commission of the felony;
(c.5) At the time of the commission of the felony, the defendant was on
bond in a juvenile prosecution under title 19, C.R.S., for having pled
guilty to a lesser delinquent act when the original delinquent act charged
would have constituted a felony if committed by an adult;
(c.7) At the time of the commission of the felony, the defendant was
under a deferred judgment and sentence for a delinquent act that would
have constituted a felony if committed by an adult;
(d) At the time of the commission of the felony, the defendant was on
parole for having been adjudicated a delinquent child for an offense which
would constitute a felony if committed by an adult.
(10)(a) The general assembly hereby finds that certain crimes which are
listed in paragraph (b) of this subsection (10) present an extraordinary
risk of harm to society and therefore, in the interest of public safety,
for such crimes which constitute class 3 felonies, the maximum sentence in
the presumptive range shall be increased by four years; for such crimes
which constitute class 4 felonies, the maximum sentence in the presumptive
range shall be increased by two years; for such crimes which constitute
class 5 felonies, the maximum sentence in the presumptive range shall be
increased by one year; for such crimes which constitute class 6 felonies,
the maximum sentence in the presumptive range shall be increased by six
months.
(b) Crimes that present an extraordinary risk of harm to society shall
include the following:
(I) to (VIII) Repealed.
(IX) Aggravated robbery, as defined in section 18-4-302;
(X) Child abuse, as defined in section 18-6-401;
(XI) Unlawful distribution, manufacturing, dispensing, sale, or
possession of a controlled substance with the intent to sell, distribute,
manufacture, or dispense, as defined in section 18-18-405;
(XII) Any crime of violence, as defined in section 18-1.3-406;
(XIII) Stalking, as described in section 18-9-111(4); and
(XIV) Sale or distribution of materials to manufacture controlled
substances, as described in section 18-18-412.7.
(c) Repealed.
(11) When it shall appear to the satisfaction of the court that the ends
of justice and the best interest of the public, as well as the defendant,
will be best served thereby, the court shall have the power to suspend the
imposition or execution of sentence for such period and upon such terms and
conditions as it may deem best; except that in no instance shall the court
have the power to suspend a sentence to a term of incarceration when the
defendant is sentenced pursuant to a sentencing provision that requires
incarceration or imprisonment in the department of corrections, community
corrections, or jail. In no instance shall a sentence be suspended if the
defendant is ineligible for probation pursuant to section 18-1.3-201,
except upon an express waiver being made by the sentencing court regarding
a particular defendant upon recommendation of the district attorney and
approval of such recommendation by an order of the sentencing court
pursuant to section 18-1.3-201(4).
(12) Every sentence entered under this section shall include
consideration of restitution as required by part 6 of this article and by
article 18.5 of title 16, C.R.S.
(13)(a) The court, if it sentences a defendant who is convicted of any
one or more of the offenses specified in paragraph (b) of this subsection
(13) to incarceration, shall sentence the defendant to a term of at least
the midpoint, but not more than twice the maximum, of the presumptive range
authorized for the punishment of the offense of which the defendant is
convicted if the court makes the following findings on the record:
(I) The victim of the offense was pregnant at the time of commission of
the offense; and
(II) The defendant knew or reasonably should have known that the victim
of the offense was pregnant.
(III) (Deleted by amendment, L. 2003, p. 2163, § 3, effective July 1,
2003.)
(b) The provisions of this subsection (13) shall apply to the following
offenses:
(I) Murder in the second degree, as described in section 18-3-103;
(II) Manslaughter, as described in section 18-3-104;
(III) Criminally negligent homicide, as described in section 18-3-105;
(IV) Vehicular homicide, as described in section 18-3-106;
(V) Assault in the first degree, as described in section 18-3-202;
(VI) Assault in the second degree, as described in section 18-3-203;
(VII) Vehicular assault, as described in section 18-3-205.
(c) Notwithstanding any provision of this subsection (13) to the
contrary, for any of the offenses specified in paragraph (b) of this
subsection (13) that constitute crimes of violence, the court shall
sentence the defendant in accordance with the provisions of section
18-1.3-406.