Requiring the court to either revoke or continue probation within five days of the hearing on revocation is a directory provision, not jurisdictional. There is no basis for reversing the court's revocation of probation when the defendant consented to a hearing outside the statutory time period and the timing did not affect the fairness of the proceeding or cast doubt on the reliability of the outcome. People v. Heimann, 186 P.3d 77 (Colo. App. 2007). |
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Failure to follow statutory procedure voids revocation. The statutory procedure for hearing and revocation was not followed and no evidence was presented to show that defendant had violated any of the terms of his probation. Defendant's application for counsel to initiate appeal proceedings was not inconsistent with probation. Snook v. People, 169 Colo. 95, 453 P.2d 806 (1969). |
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Revocation held fundamentally unfair. It was fundamentally unfair to accept child support payments for a period of six months and then use as a ground for revocation of probation defendant's failure to make payments prior to that period. People v. Silcott, 177 Colo. 451, 494 P.2d 835 (1972). |
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Authority of court to impose sentence upon revocation. Upon revocation, the trial court has full authority to impose a sentence within the minimum and maximum term provided by statute for the crime. Gehl v. People, 161 Colo. 535, 423 P.2d 332 (1967). |
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Consecutive sentencing is an appropriate mechanism for imposing a distinct punishment for each of two criminal acts. People v. Lorenzo, 644 P.2d 50 (Colo. App. 1981). |
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The words "which might have originally been imposed or granted" in subsection (5) mean that the later imposition of sentence shall be done in accordance with the law applicable at the time defendant was originally placed on probation, and they do not mandate concurrent rather than consecutive sentencing. People v. Lorenzo, 644 P.2d 50 (Colo. App. 1981). |
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Time on probation need not be credited against sentence. The granting of probation is not the imposition of sentence or its equivalent, and time served on probation need not be credited against a sentence imposed upon revocation. Gehl v. People, 161 Colo. 535, 423 P.2d 332 (1967). |
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Probation revocation orders are reviewable by direct appeal. People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974). |
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But the finding that probation has been violated will not be disturbed merely because there is a conflict in evidence. People v. Trujillo, 189 Colo. 206, 539 P.2d 1234 (1975). |
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Statute as basis for jurisdiction. See People v. Sandoval, 36 Colo. App. 403, 541 P.2d 105 (1975). |
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Subsection (5) does not limit sentence to that originally agreed upon as part of a plea bargain but to that which might originally have been imposed pursuant to statute. People v. McDaniels, 844 P.2d 1257 (Colo. App. 1992); People v. Smith, 183 P.3d 726 (Colo. App. 2008). |
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Unambiguous language of subsection (5) authorizes court, upon revoking probation, to impose any sentence that it could have imposed based on the underlying crime. People v. Santana, 961 P.2d 498 (Colo. App. 1997). |
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The fact that defendant had previously received a two and one-half year sentence did not limit the court's authority to consider the full range of sentences authorized under statute. People v. Santana, 961 P.2d 498 (Colo. App. 1997). |
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Subsection (5) is inapplicable where probation was imposed, not as a sentence, but merely as a condition of a suspended prison sentence. People v. Frye, 997 P.2d 1223 (Colo. App. 1999). |
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Once probation is revoked, a different factual predicate exists upon which the sentence is to be imposed. People v. McDaniels, 844 P.2d 1257 (Colo. App. 1992); People v. Santana, 961 P.2d 498 (Colo. App. 1997). |
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Court was authorized by statute to consider a wide range of penalties in sentencing since statute provides no time limitations with respect to the length of a probationary term or the length of the conditions attached to that term. People v. McCarty, 851 P.2d 181 (Colo. App. 1992), aff'd, 874 P.2d 394 (Colo. 1994). |
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Despite six-year delay, state had no duty to set defendant's probation revocation hearing until after termination of defendant's incarceration in another jurisdiction. People v. Smith, 183 P.3d 726 (Colo. App. 2008). |
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Applied in People v. Varner, 181 Colo. 146, 508 P.2d 390 (1973); People v. Houpe, 41 Colo. App. 253, 586 P.2d 241 (1978); People v. Boykin, 631 P.2d 1149 (Colo. App. 1981); People v. Dennis, 649 P.2d 321 (Colo. 1982); People v. Elder, 36 P.3d 172 (Colo. App. 2001). |
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