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Experienced Colorado attorney on ‘Conviction’ under two-prior felony rule

Experienced Colorado attorney explains definition of ‘conviction’ for purposes of the two-prior felony rule.
People v. Kiniston (Colo.App.2011)

Facts: Mr. Kiniston pled guilty to theft directly from a person (a class five felony), and the court approved a deferred sentence. Unfortunately, Mr. Kiniston picked up two felony convictions after the court placed him on the deferred sentenced. Upon revocation, Mr. Kiniston argued for probation. The trial court found that because at the time of his sentencing Mr. Kiniston had twice been convicted of a felony and was currently being sentenced after a conviction for theft directly from a person, the court could not grant probation.

Issue: Whether the term conviction applies to when Mr. Kiniston pled or whether conviction applies to when the court actually imposes a sentence?

Held: The term conviction applies to when Mr. Kiniston pled originally – not when the court revoked the deferred and entered judgment on that conviction.

Reasoning: The Colorado Court of Appeals went through other statutes and other decisions which defined ‘conviction’, and almost every instance penalized the defendant one way or another. Nonetheless, the State wanted to disregard all of that prior law (of which it often benefitted greatly) in order to win on this relatively meaningless and minor issue that rarely arises.  Disregarding the State’s arguments, the appellate court reasoned in this way:

If the term “conviction” were read to mean “judgment of conviction,” subsection (2)(a.5) would read as follows: A person who has twice or more received a judgment of conviction of a felony … prior to the judgment of conviction on which his or her application for probation is based shall not be eligible for probation. Because a “judgment of conviction” includes the sentence imposed, such a reading is nonsensical, as it discusses the availability (or lack thereof) of probation for a defendant who has already been sentenced. Cf. Nance, 221 P.3d at 433 (in a probation revocation case under section 18-1.3-201(2), the division noted that a defendant’s application for probation is made after “conviction,” in a context clearly indicating that “conviction” does not mean “judgment of conviction”).

(Citation omitted)

***Commentary contributed by Eric Sims Jr., Esq.***

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