(1) (a) A person who has been convicted of an offense, other than a class 1 felony or a civil infraction, is eligible to apply to the court for probation.
(b) Repealed.
(2) (a) The provisions of this subsection (2) shall apply to any person whose application for probation is based on a conviction for a felony, which conviction occurred before May 25, 2010. (a.5) A person who has been twice or more convicted of a felony under the laws of this state, any other state, or the United States prior to the conviction on which his or her application is based shall not be eligible for probation.
(b) Notwithstanding any other provision of law except the provisions of paragraph (c) of this subsection (2), a person who has been convicted of one or more felonies under the laws of this state, any other state, or the United States within ten years prior to a class 1, 2, or 3 felony conviction on which his or her application is based shall not be eligible for probation.
(c) Notwithstanding the provisions of paragraph (a.5) of this subsection (2) and subsection (4) of this section, an offender convicted of a violation of section 18-18-403.5 may be eligible for probation upon recommendation of the district attorney.
(d) Repealed.
(2.1) Repealed.
(2.5) (a) The provisions of this subsection (2.5) shall apply to any person whose application for probation is based on a conviction for a felony, which conviction occurred on or after May 25, 2010.
(b) Except as described in subsection (4)(a) of this section, a person who has been twice or more convicted of a felony upon charges separately brought and tried and arising out of separate and distinct criminal episodes under the laws of this state, any other state, or the United States prior to the conviction on which the person's application is based is not eligible for probation if the current conviction or a prior conviction is for:
(I) First or second degree murder, as described in section 18-3-102 or 18-3-103;
(II) Manslaughter, as described in section 18-3-104;
(III) First or second degree assault, as described in section 18-3-202 or 18-3-203;
(IV) First or second degree kidnapping, as described in section 18-3-301 or 18-3-302;
(V) A sexual offense as described in part 4 of article 3 of this title;
(VI) First degree arson, as described in section 18-4-102;
(VII) First or second degree burglary, as described in section 18-4-202 or 18-4-203;
(VIII) Robbery, as described in section 18-4-301;
(IX) Aggravated robbery, as described in section 18-4-302, or aggravated robbery of controlled substances, as described in section 18-4-303, as it existed prior to October 1, 2023;
(X) Theft from the person of another, as described in section 18-4-401 (5);
(XI) Any felony offense committed against a child, as described in article 3, 6, or 7 of this title; or
(XII) Any criminal attempt or conspiracy to commit any of the offenses specified in this paragraph (b).
(c) Failure to register as a sex offender, as described in section 18-3-412.5, shall not constitute a sexual offense for the purposes of subparagraph (V) of paragraph (b) of this subsection (2.5).
(3) An application for probation shall be in writing upon forms furnished by the court, but, when the defendant has been convicted of a misdemeanor or any petty offense, the court, in its discretion, may waive the written application for probation.
(4) (a) (I) The restrictions upon eligibility for probation in subsections (2) and (2.5) of this section may be waived by the sentencing court regarding a particular defendant upon recommendation of the district attorney approved by an order of the sentencing court.
(II) Repealed.
(b) Upon entry of an order pursuant to this subsection (4) regarding a particular defendant, such defendant shall be deemed to be eligible to apply to the court for probation pursuant to this section.
(5) For purposes of paragraph (a.5) of subsection (2) of this section and paragraph (a) of subsection (2.5) of this section, "conviction" means a verdict of guilty or the entry of a plea of guilty or nolo contendere. "Conviction" does not include a plea to a deferred judgment and sentence pursuant to section 18-1.3-102 until the deferred judgment and sentence is revoked.
Source: L. 2002: Entire article added with relocations, p. 1375, § 2, effective October 1. L. 2003: (2) amended and (2.1) added, p. 2689, § 7, effective July 1. L. 2007: (2)(d) and (2.1) repealed, p. 1689, § 10, effective July 1. L. 2010: (1)(b) and (4)(a)(II) repealed, (2) and (4)(a)(I) amended, and (2.5) added, (HB 10-1338), ch. 257, pp. 1147, 1145, §§ 2, 1, effective May 25;
(2)(c) amended, (HB 10-1352), ch. 259, p. 1173, § 16, effective August 11. L. 2012: (5) added, (HB 12-1310), ch. 268, p. 1396, § 12, effective June 7. L. 2013: (3) amended, (SB 13-250), ch. 333, p. 1935, § 54, effective October 1. L. 2021: (1)(a) amended, (SB 21-271), ch. 462, p. 3169, § 183, effective March 1, 2022. L. 2023: IP(2.5)(b) and (2.5)(b)(IX) amended, (HB 23-1293), ch. 298, p. 1783, § 4, effective October 1.
Editor's note: (1) This section is similar to former § 16-11-201 as it existed prior to 2002.
(2) Amendments to subsection (2)(c) by House Bill 10-1338 and House Bill 10-1352 were harmonized.
Cross references: (1) For procedures relevant to application for probation, see Crim. P. 32.
(2) For the legislative intent contained in the 2003 act amending subsection (2) and enacting subsection (2.1), see section 1 of chapter 424, Session Laws of Colorado 2003.
Notes of Decisions
Cited in
18
cases (
4 in the last 5 years), 2003–2025 · leading case:
v. Dominguez, 2021 COA 76.
v. Dominguez, 2021 COA 76.
· cites it 24× “Dominguez — Criminal Law — Sentencing — Probation — Two Prior Felony Rule A division of the court of appeals interprets the 2010 amendment to the two prior felony rule, section 18-1.3-201(2.5), C.R.S. 2020, and concludes for the first time that a defendant is ineligible for…”
People v. Nance, 221 P.3d 428 (Colo. Ct. App. 2009).
· cites it 13× “However, the structure and language of section 18-1.3-201 suggest that the district attorney's recommendation to waive the two-felony rule occurs only prior to the initial sentencing.”
Veith v. People, 2017 CO 19, 390 P.3d 403.
“(2016). Smith, ¶ 8, 318 P.3d at 475 . ¶ 15 Resolution of the issue before us requires us to determine what constitutes consent.”
People v. Kiniston, 262 P.3d 942 (Colo. Ct. App. 2011).
· cites it 13× “3-201 shows that the People's interpretation cannot be adopted, because those provisions simply do not make sense if the terms "convicted" and "conviction" are read to refer to a "judgment of conviction." Subsection (1)(a). provides that "[al person who has been convicted of an…”
Danielson v. Dennis, 139 P.3d 688 (Colo. 2006).
· cites it 4× “For example, those convicted of a class one felony or a' class two petty' offense may not apply for probation.”
People v. Schreiber, 226 P.3d 1221 (Colo. Ct. App. 2009).
· cites it 3× “§ 18-1.3-201(2)(a), C.R.S.2009. A felony conviction may be used to impeach a witness's testimony.”
People v. Sanders, 220 P.3d 1020 (Colo. Ct. App. 2009).
· cites it 6× “The prosecution agreed to waive the "two prior felony rule" found in section 18-1.3-201(2)(a), C.R.S.2009, which states that defendants with two or more prior felony convictions are not eligible for probation.”
Fierro v. People, 206 P.3d 460 (Colo. 2009).
· cites it 3× “The two-felony rule, found in section 18-1.3-201(2)(a), C.R.S. (2008), is a restriction on probation for repeat felony offenders, which reads: "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…”
Chism v. People, 80 P.3d 293 (Colo. 2003).
· cites it 4× “See § 18-1.3-201 (4)(a)(II), 6 C.R.S. (2003).”
v. People, 2020 CO 15.
· cites it 2× “, § 18-1.3-201, C.R.S. (2019). The direct-file statute makes no such reference, and we will “not read into a statute language that is not there.”
People v. Steen, 2014 CO 9, 318 P.3d 487.
“See §§ 18-1.3-201 to -213, C.R.S. (2018). Section 18-1.”
Colo. Rev. Stat. § 18-1.3-201(1): 1 case
People v. Nance, 221 P.3d 428 (Colo. Ct. App. 2009).
“However, the structure and language of section 18-1.3-201 suggest that the district attorney's recommendation to waive the two-felony rule occurs only prior to the initial sentencing.”
Colo. Rev. Stat. § 18-1.3-201(2): 5 cases
v. Dominguez, 2021 COA 76.
“Dominguez — Criminal Law — Sentencing — Probation — Two Prior Felony Rule A division of the court of appeals interprets the 2010 amendment to the two prior felony rule, section 18-1.3-201(2.5), C.R.S. 2020, and concludes for the first time that a defendant is ineligible for…”
People v. Nance, 221 P.3d 428 (Colo. Ct. App. 2009).
“However, the structure and language of section 18-1.3-201 suggest that the district attorney's recommendation to waive the two-felony rule occurs only prior to the initial sentencing.”
People v. Kiniston, 262 P.3d 942 (Colo. Ct. App. 2011).
“3-201 shows that the People's interpretation cannot be adopted, because those provisions simply do not make sense if the terms "convicted" and "conviction" are read to refer to a "judgment of conviction." Subsection (1)(a). provides that "[al person who has been convicted of an…”
Chism v. People, 80 P.3d 293 (Colo. 2003).
“See § 18-1.3-201 (4)(a)(II), 6 C.R.S. (2003).”
Colo. Rev. Stat. § 18-1.3-201(2)(a): 6 cases
v. Dominguez, 2021 COA 76.
“Dominguez — Criminal Law — Sentencing — Probation — Two Prior Felony Rule A division of the court of appeals interprets the 2010 amendment to the two prior felony rule, section 18-1.3-201(2.5), C.R.S. 2020, and concludes for the first time that a defendant is ineligible for…”
People v. Schreiber, 226 P.3d 1221 (Colo. Ct. App. 2009).
“§ 18-1.3-201(2)(a), C.R.S.2009. A felony conviction may be used to impeach a witness's testimony.”
People v. Sanders, 220 P.3d 1020 (Colo. Ct. App. 2009).
“The prosecution agreed to waive the "two prior felony rule" found in section 18-1.3-201(2)(a), C.R.S.2009, which states that defendants with two or more prior felony convictions are not eligible for probation.”
Fierro v. People, 206 P.3d 460 (Colo. 2009).
“The two-felony rule, found in section 18-1.3-201(2)(a), C.R.S. (2008), is a restriction on probation for repeat felony offenders, which reads: "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…”
Colo. Rev. Stat. § 18-1.3-201(2)(b): 2 cases
v. Dominguez, 2021 COA 76.
“Dominguez — Criminal Law — Sentencing — Probation — Two Prior Felony Rule A division of the court of appeals interprets the 2010 amendment to the two prior felony rule, section 18-1.3-201(2.5), C.R.S. 2020, and concludes for the first time that a defendant is ineligible for…”
Danielson v. Dennis, 139 P.3d 688 (Colo. 2006).
“For example, those convicted of a class one felony or a' class two petty' offense may not apply for probation.”
Colo. Rev. Stat. § 18-1.3-201(2)(c): 1 case
People v. Nance, 221 P.3d 428 (Colo. Ct. App. 2009).
“However, the structure and language of section 18-1.3-201 suggest that the district attorney's recommendation to waive the two-felony rule occurs only prior to the initial sentencing.”
Colo. Rev. Stat. § 18-1.3-201(4)(a)(I): 3 cases
v. Dominguez, 2021 COA 76.
“Dominguez — Criminal Law — Sentencing — Probation — Two Prior Felony Rule A division of the court of appeals interprets the 2010 amendment to the two prior felony rule, section 18-1.3-201(2.5), C.R.S. 2020, and concludes for the first time that a defendant is ineligible for…”
People v. Nance, 221 P.3d 428 (Colo. Ct. App. 2009).
“However, the structure and language of section 18-1.3-201 suggest that the district attorney's recommendation to waive the two-felony rule occurs only prior to the initial sentencing.”
Chism v. People, 80 P.3d 293 (Colo. 2003).
“See § 18-1.3-201 (4)(a)(II), 6 C.R.S. (2003).”
Colo. Rev. Stat. § 18-1.3-201(l)(a): 1 case
Danielson v. Dennis, 139 P.3d 688 (Colo. 2006).
“For example, those convicted of a class one felony or a' class two petty' offense may not apply for probation.”
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