Yes. Prison followed by probation is an illegal sentence. Thousands of people are serving these illegal sentences.
Can people be sentenced to prison and probation in Colorado?
No, according to the recent Colorado Supreme Court case Allman v. People (2019 CO 78). On September 23, 2019, the court said:
We hold that when a court sentences a defendant for multiple offenses in the same case, it may not impose imprisonment for certain offenses and probation for others.
In short, the court cannot impose prison plus probation in the same case. It is still legal for a sentence to include prison and parole. But it is unlawful for a sentence to include prison and probation.
What can defendants with illegal sentences do about it?
Contact a Colorado criminal defense attorney. They can discuss appealing the sentence. This requires filing an “appellate brief” and maybe having a hearing.
There is a good chance the appeal will be successful. There is no gray area to argue about. The Colorado Supreme Court plainly said that prison plus probation is illegal.
The appeals process itself may take several weeks or months. So defendants should consult with a lawyer as soon as possible. Then they can go over their options before their sentence is over.
Is appealing the sentence worth it?
Defendants should discuss the pros and cons of appealing with an attorney. According to 9News, Boulder County District Attorney Michael Dougherty warns that an appeal could backfire for defendants. He said, “For some defendants, going back and reopening these cases could expose them to a longer sentence than they’re currently serving.”
So there is a chance that defendants who appeal may be sentenced to more prison. But perhaps the court will simply drop the probation altogether. Again, defendants should consult with an attorney to discuss whether an appeal is in their best interest.
How is probation different than parole?
Probation is an alternative sentence to prison. In contrast, parole follows a prison sentence.
Probation and parole resemble each other. Defendants are required to abide by various terms to stay out of custody. Ten common probation/parole terms include:
- Following a curfew;
- Abstaining from drugs and alcohol;
- Avoiding certain locations;
- Avoiding contact with certain people;
- Attending counseling;
- Attending rehab and/or 12-step programs (such as AA, NA, etc.);
- Holding down a job;
- Regularly reporting to the probation/parole officer;
- Wearing a GPS anklet and/or an alcohol detection anklet; and/or
- Submitting to random drug and alcohol testing
Defendants who violate probation risk being sent to prison. And defendants who violate parole risk being sent back to prison.
Defendants accused of violating their parole or probation can have a “revocation hearing.” The defendants can assert their innocence and ask to remain out of custody. But in revocation hearings, prosecutors do not have to show guilt beyond a reasonable doubt. Their burden of proof is much lower.
