CO Code § 16-11-206 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 11 - Imposition of Sentence|Part 2 - Probation|§ 16-11-206. Revocation Hearing

  At the first appearance of the probationer in court or at the commencement of the hearing, whichever is first in time, the court shall advise the probationer as provided in section 16-7-207 insofar as such matters are applicable; except that there is no right to a trial by jury in proceedings for revocation of probation.    At or prior to the commencement of the hearing, the court shall advise the probationer of the charges against him and the possible penalties therefor and shall require the probationer to plead guilty or not guilty.    At the hearing, the prosecution has the burden of establishing by a preponderance of the evidence the violation of a condition of probation; except that the commission of a criminal offense must be established beyond a reasonable doubt unless the probationer has been convicted thereof in a criminal proceeding. When, in a revocation hearing, the alleged violation of a condition is the probationer's failure to pay court-ordered compensation to appointed counsel, probation fees, court costs, restitution, or reparations, evidence of the failure to pay shall constitute prima facie evidence of a violation. The court may, when it appears that the alleged violation of conditions of probation consists of an offense with which the probationer is charged in a criminal proceeding then pending, continue the probation revocation hearing until the termination of the criminal proceeding. Any evidence having probative value shall be received regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.    If the probationer is in custody, the hearing shall be held within fourteen days after the filing of the complaint, unless delay or continuance is granted by the court at the instance or request of the probationer or for other good cause found by the court justifying further delay.    If the court determines that a violation of a condition of probation has been committed, it shall, within seven days after the said hearing, either revoke or continue the probation. If probation is revoked, the court may then impose any sentence or grant any probation pursuant to the provisions of this part 2 which might originally have been imposed or granted.     History. Source: L. 72: R&RE, p. 245, § 1. C.R.S. 1963: § 39-11-206 . L. 83: (3) amended, p. 664, § 5, effective July 1. L. 2012: (4) and (5) amended,(SB 12-175), ch. 208, p. 855, § 87, effective July 1. L. 2017: (1) amended,(SB 17-294), ch. 264, p. 1392, § 34, effective May 25.    ANNOTATION   Annotator's note. Since § 16-11-206 is similar to repealed § 39-16-9 , C.R.S. 1963, and § 39-16-9 , CRS 53, relevant cases construing those provisions have been included in the annotations to this section.   Scope of probationer's constitutional rights. Upon a probation revocation hearing the probationer is not entitled to claim the full range of constitutional guarantees available to one not yet convicted of a crime. Holdren v. People, 168 Colo. 474 , 452 P.2d 28 (1969); People v. Atencio, 186 Colo. 76 , 525 P.2d 461 (1974).   While the defendant is entitled to certain procedural due process rights at a probation revocation hearing, he is not entitled to the full panoply of constitutional guarantees available to one who has not been convicted of a crime, and thus cannot complain of the admission of illegally seized evidence. People v. Wilkerson, 189 Colo. 448 , 541 P.2d 896 (1975).   The following “minimum requirements of due process” at parole or probation revocation hearings are required: (1) Written notice of the claimed violations of probation; (2) disclosure to the probationer of evidence against him; (3) opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (5) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (6) a written statement by the fact finders as to the evidence relied on and reasons for revoking probation. People v. Atencio, 186 Colo. 76 , 525 P.2d 461 (1974); People v. Thomas, 42 Colo. App. 441, 599 P.2d 957 (1979).   Prior to a probation revocation hearing, the probationer has a right to be informed of the specific probation violations with which he is charged. People v. Carr, 185 Colo. 293 , 524 P.2d 301 (1974).   Right to counsel applies to revocation hearings, including effective assistance of counsel as tested by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Timoshchuk, 2018 COA 153 , 457 P.3d 684.   Nothing in this section or the state or federal constitutions requires the trial court to advise the defendant of his or her right to testify at a deferred judgment revocation proceeding. People v. Allen, 973 P.2d 620 (Colo. 1999).   Oral findings made by the fact finder on the record satisfy constitutional requirements of procedural due process, including a written statement by the fact finder as to the evidence relied on and the reasons for revoking probation. People v. Elder, 36 P.3d 172 (Colo. App. 2001).   Defendant's privilege against self-incrimination precluded the court from revoking defendant's probation based on a refusal to answer the polygraph examiner's question regarding viewing or using child pornography while on probation. People v. Roberson, 2016 CO 36, 377 P.3d 1039.   There is no fifth amendment violation when a trial court revokes a defendant's probation based on a total refusal to attend sex offender treatment. Defendant prematurely invoked his fifth amendment right before actually being required to incriminate himself. People v. Ruch, 2016 CO 35, 379 P.3d 309.   He has rights granted by general assembly. Where there are no constitutional rights involved, the supreme court of the United States has stated that a probationer has only those rights granted to him by the general assembly. Gehl v. People, 161 Colo. 535 , 423 P.2d 332 (1967).   Clear purpose of § 16-11-204 (3) is to provide criminal defendant with notice of terms of his probation. People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980).   But failure to comply with § 16-11-204 (3) did not require reversal of revocation in and of itself. People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980).   Defendant presumed to know that violation may result in revocation. Probation is a privilege, and a criminal defendant is presumed to know that the violation of any term of his probation may result in revocation. People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980).   Probation revocation proceedings involving deferred sentencing are quite distinct from parole revocation proceedings. The statutes on probation do not provide probationers more in substance than what is accorded parolees. Martinez v. Patterson, 429 F.2d 844 (10th Cir. 1970), cert. denied, 402 US 934, 91 S. Ct. 1528, 28 L. Ed. 2d 868 (1971).   For purposes of determining whether an order is final and appealable, there is no appreciable difference between an order dismissing a petition to revoke probation and an order declining to revoke probation. Lewis v. People, 214 P.3d 1059 (Colo. 2009).   The question of whether the probation shall be revoked is within the sound discretion of the judge. Holdren v. People, 168 Colo. 474 , 452 P.2d 28 (1969); People v. Ickler, 877 P.2d 863 (Colo. 1994); People v. Colabello, 948 P.2d 77 (Colo. App. 1997); People v. Elder, 36 P.3d 172 (Colo. App. 2001).   Probation is a privilege, not a right. Whether a probationer has violated a probation condition presents a question of fact. Once the court finds that a violation has occurred, whether probation should be revoked lies within the discretion of the court. People v. Ickler, 877 P.2d 863 (Colo. 1994); People v. Colabello, 948 P.2d 77 (Colo. App. 1997); People v. Howell, 64 P.3d 894 (Colo. App. 2002).   It is better practice to continue a probation revocation hearing until after a trial on new charges, but it lies within the discretion of the trial court. People v. Ray, 192 Colo. 391 , 560 P.2d 74 (1977).   Issue preclusion does not apply to bar the right of a defendant to a trial where defendant had been charged with the crime of driving with a revoked license, which constituted both a violation of his probation and a new criminal act. Defendant did not have a full and fair opportunity to litigate the issue in the probation revocation hearing. A determination of guilt or innocence in a probation revocation hearing would undermine the function of the criminal trial process. Byrd v. People, 58 P.3d 50 (Colo. 2002).   Probation revocation hearings are held for different purposes, governed by different procedures, and do not protect a defendant's rights as does a criminal trial. Byrd v. People, 58 P.3d 50 (Colo. 2002).   Continuance of hearing not reversed absent abuse of discretion. A finding of good cause for a continuance is within the discretion of the trial court and will not be reversed appeal absent an abuse of discretion. People v. Marrow, 638 P.2d 842 (Colo. App. 1981).   Abuse not found. Where a court ordered a continuance in view of the late filing of an amended complaint against defendant and the defendant's need for additional time to respond to the allegations in the amended complaint, there was no abuse of discretion. People v. Marrow, 638 P.2d 842 (Colo. App. 1981).   What constitutes prejudice in denial of continuance at hearing. When a continuance of a sentencing hearing for revocation of probation is denied, the trial court will not be held to have abused its discretion unless the defendant demonstrates prejudice resulting from the failure to continue. Where the defendant subsequently pleads guilty to the charge for which probation was revoked, he fails to establish prejudice. People v. Abila, 670 P.2d 432 (Colo. App. 1983).   This section ordains the procedure where a probationer violates the conditions of probation. Logan v. People, 138 Colo. 304 , 332 P.2d 897 (1958).   It requires a hearing on a revocation of probation. Holdren v. People, 168 Colo. 474 , 452 P.2d 28 (1969).   To read this section harmoniously with § 16-11-204 , the proper standard of proof is a preponderance of the evidence when it is alleged that a condition of probation has been breached, even though the breaching conduct also may have constituted a criminal offense. People v. Moses, 64 P.3d 904 (Colo. App. 2002).   Burden of establishing violation. Where an alleged violation of a condition of probation is a criminal offense, the prosecution has the burden of establishing the violation beyond a reasonable doubt. People v. Carr, 185 Colo. 293 , 524 P.2d 301 (1974).   Subsection (3) is based on a defendant's being subsequently convicted of a crime, not receiving a judgment of conviction. People v. Blackwell, 2016 COA 136 , 409 P.3d 558.   Under subsection (3), once the prosecution shows that a defendant has not paid restitution, the burden shifts to the defendant to show that he or she was unable to pay. People v. Roletto, 2015 COA 41 , 370 P.3d 190.   Beyond reasonable doubt standard of proof. An adult charged with a probation violation which constitutes a criminal offense has the right to demand that the people's charge that he committed the crime relied upon as a probation violation be proved “beyond a reasonable doubt”. People in Interest of C.B., 196 Colo. 362 , 585 P.2d 281 (1978); People v. Van Deusen, 677 P.2d 402 (Colo. App. 1983).   Defendant's plea constitutes a conviction within the meaning of subsection (3). Court does not have to find reasonable doubt that defendant violated the law because the court's acceptance of defendant's guilty plea amounted to a conviction and a violation of the terms of defendant's deferred judgment. People v. Blackwell, 2016 COA 136 , 409 P.3d 558.   Presumption that court applied proper standard of proof. Although the court did not articulate the standard of proof it applied in revoking probation, the court is entitled to a presumption that it applied the proper standard. People v. Carr, 185 Colo. 293 , 524 P.2d 301 (1974).   Plea of not guilty by reason of insanity not allowed in probation revocation hearing. A court, in permitting a plea of “not guilty by reason of insanity” in a probation revocation hearing, exceeds its jurisdiction, as a plea of not guilty by reason of insanity is not a proper means of testing competency at a probation revocation hearing. People ex rel. Gallagher v. District Court, 196 Colo. 499 , 591 P.2d 1015 (1978).   Formal procedures and rules of evidence not employed. One of the critical differences between criminal trials and probation revocation hearings is that formal procedures and rules of evidence are not employed. People v. Atencio, 186 Colo. 76 , 525 P.2d 461 (1974).   Hearing may be informally conducted. Where a hearing to revoke probation is called for by statute, it may be informally conducted. Gehl v. People, 161 Colo. 535 , 423 P.2d 332 (1967).   A hearing must be held on a petition to revoke probation. But the hearing may be informally conducted, and the court may take into consideration all factors normally taken into account during sentencing. Holdren v. People, 168 Colo. 474 , 452 P.2d 28 (1969).   Two-month delay in scheduling of hearing for probation revocation under subsection (4) did not violate defendant's due process rights. Much of the delay was caused by defendant's failure to inform his defense counsel or the court of his whereabouts, and final two months of delay do not constitute a sufficient time interval to warrant a conclusion that the delay was excessive. Defendant has failed to demonstrate that he has suffered any other prejudice. People v. Newman, 867 P.2d 94 (Colo. App. 1993).   Proper sanction for violation of subsection (4) is release of the probationer from custody, and not dismissal of the petition. People v. Clark, 654 P.2d 847 (Colo. 1982); People v. Newman, 867 P.2d 94 (Colo. App. 1993).   If an alleged probation violator has been held in custody up to the statutory time limit and has not had a hearing, he must be immediately released from custody, but the complaint may remain pending or be refiled. Only custody is forfeited if a hearing is not held in time. People v. Clark, 654 P.2d 847 (Colo. 1982).   Speedy disposition of revocation petition applies to juveniles. The speedy disposition of a revocation petition, guaranteed to adults under subsection (4), must be extended to juveniles. People in Interest of D.M., 650 P.2d 1350 (Colo. App. 1982).   Delay attributable to court calendar congestion may be a permissible cause for delay under subsection (4). People in Interest of D.M., 650 P.2d 1350 (Colo. App. 1982).   Prosecution has burden of proving that docket congestion is sufficiently egregious as to be good cause for the delay. People in Interest of D.M., 650 P.2d 1350 (Colo. App. 1982).   Fifteen-day limitation applies to deferred sentence revocation hearing. Since the 15-day limitation imposed by subsection (4) is a procedural safeguard required for probation revocation hearings, it applies to a deferred sentence revocation pursuant to § 16-7-403 . People v. Schoonover, 654 P.2d 1340 (Colo. App. 1982).   It is not bound by strict rules of evidence. In a proceeding to determine whether probation should be revoked, the court will not be bound by the strict rules of evidence. The probation officer was subject to cross-examination regarding the hearsay evidence which he offered, and such was not an abuse of discretion by the trial court. Holdren v. People, 168 Colo. 474 , 452 P.2d 28 (1969).   Hearsay evidence is only admissible at a revocation hearing if the probationer has a fair opportunity to rebut such evidence. People in Interest of T.M.H., 821 P.2d 895 (Colo. App. 1991).   A probation violation may be established by hearsay testimony if the offering witness is subject to cross-examination. People v. Moses, 64 P.3d 904 (Colo. App. 2002).   Triple hearsay may be sufficient to prove a violation of a condition of probation as long as defendant has an opportunity to rebut the hearsay evidence. People v. Ruch, 2013 COA 96 , 374 P.3d 485, rev'd on other grounds, 2016 CO 35, 379 P.3d 309.   Permitting probation officer to testify about hearsay was harmless beyond a reasonable doubt, because trial court relied upon other evidence to find a probation violation. People v. Howell, 64 P.3d 894 (Colo. App. 2002).   A trial court is not bound by the strict rules of evidence during a probation revocation hearing. People in Interest of C.J.W., 727 P.2d 870 (Colo. App. 1986); People v. Kelly, 919 P.2d 866 (Colo. App. 1996).   Since defendant knew that failure to meet conditions of probation might constitute extraordinary aggravating circumstances which would justify sentencing beyond the presumptive range, the court was justified in doubling of presumptive range of sentence when defendant met neither the community service nor the restitution condition of probation. Montoya v. People, 864 P.2d 1093 (Colo. 1993).   Where the only witness lacks personal knowledge of the essential incriminating facts supporting the revocation of probation, the probationer cannot be provided the fair opportunity to rebut as required by the statute. People in Interest of T.M.H., 821 P.2d 895 (Colo. App. 1991).   Defendant had a fair opportunity to rebut hearsay evidence offered at parole revocation hearing. Although the probation officer did not know the identity of the sheriff deputy that said that defendant's roommate had said defendant did not live at their residence any longer, defendant did know the identity of his roommate. Defendant, thus, had an opportunity to rebut the statement of his roommate. People v. Ruch, 2013 COA 96 , 374 P.3d 485, rev'd on other grounds, 2016 CO 35, 379 P.3d 309.   After acceptance of an Alford plea, court can revoke probation for failure to complete counseling that requires defendant to admit guilt. Prior to accepting plea, court must advise defendant of direct consequences of the conviction to satisfy due process concerns. Possibility that required counseling could not be completed and that probation would be revoked if the defendant did not admit guilt, is a collateral consequence of the guilty plea. People v. Birdsong, 958 P.2d 1124 (Colo. 1998).   The trial court's finding that the defendant did not participate or cooperate in a sex offender treatment program was supported by evidence demonstrating that the defendant's test results, interviews, and behavior in the program entrance process convinced the treatment program's personnel that the defendant was not motivated for treatment, was not giving straightforward answers to questions, was not prepared to accept responsibility for his crime, and was not amenable to outpatient treatment. People v. Ickler, 877 P.2d 863 (Colo. 1994).   Exclusionary rule not applied in probation revocation hearing. The overwhelming majority of cases from state and federal jurisdictions have refused to apply the exclusionary rule to improperly seized evidence in probation revocation hearings. People v. Atencio, 186 Colo. 76 , 525 P.2d 461 (1974).   In the absence of egregious police misconduct, the exclusionary rule is inapplicable to probation revocation proceedings. People v. Ressin, 620 P.2d 717 (Colo. 1980).   And the general assembly clearly expressed its intent to have all probative evidence considered at the hearing on probation revocation, even if that evidence would be excluded in a criminal trial. People v. Atencio, 186 Colo. 76 , 525 P.2d 461 (1974).   Subsection (3) is merely a codification of the general policy that the exclusionary rule does not apply to improperly seized evidence in probation revocation hearings. People v. Wilkerson, 189 Colo. 448 , 541 P.2d 896 (1975).   The U.S. supreme court's decision in Crawford v. Washington, 541 U.S. 36 (2004), does not change the rule that a probation violation can be established by hearsay evidence, so long as the offering witness is subject to cross-examination. The right to confrontation in a probation revocation hearing flows from the due process clause, not the confrontation clause upon which the Crawford court relied. People v. Turley, 109 P.3d 1025 (Colo. App. 2004).   Defendant deprived of due process right of confrontation during revocation hearing. There was no good cause to deny confrontation or find that the prosecution's hearsay evidence was substantially reliable. The hearsay evidence was unreliable, consisting of double or triple hearsay, and did not fall within any recognized exception to the hearsay rule. People v. Loveall, 203 P.3d 540 (Colo. App. 2008), aff'd, 231 P.3d 408 (Colo. 2010).   Defendant not deprived of due process right of confrontation during revocation hearing. Because defendant conceded that he had not made the necessary restitution payments, the court's belief that jobs were generally available was peripheral to the contested issue; therefore, the newspaper was not used to prove that defendant had violated his probation. People v. Roletto, 2015 COA 41 , 370 P.3d 190.   “Convicted” defined. For the purposes of probation revocation under subsection (3) of this section, the term convicted means convicted upon trial, not when all appellate remedies are exhausted. People v. Salazar, 39 Colo. App. 409, 568 P.2d 101 (1977).   Probation can be revoked prior to conviction. People v. Salazar, 39 Colo. App. 409, 568 P.2d 101 (1977).   Standard of proof in juvenile proceedings. The same standard of proof that obtains in adult probation revocation hearings, i.e., beyond a reasonable doubt, should also apply in juvenile proceedings. People in Interest of C.B., 40 Colo. App. 43, 572 P.2d 843 (1977); People in Interest of C.B., 196 Colo. 362 , 585 P.2d 281 (1978).   After the 1983 amendment to subsection (3), a court is not required to assess a defendant's ability to pay restitution based exclusively on the factors identified in People v. Romero, 192 Colo. 106 , 559 P.2d 1101 (1976). People v. Roletto, 2015 COA 41 , 370 P.3d 190.   The power to alter a sentence at the time of revocation of probation is explicitly recognized in subsection (5) and Crim. P. 32(f) and 35(c). People v. Jenkins, 40 Colo. App. 140, 575 P.2d 13 (1977).   But gross official misconduct in gathering evidence not sanctioned. Although the exclusionary rule per se does not apply to probation revocation hearings, gross official misconduct in gathering evidence for a probation revocation will not be sanctioned where an unreasonable search or seizure is such as to shock the conscience of the court. The court will not permit such conduct to be the basis of a state-imposed sanction. People v. Atencio, 186 Colo. 76 , 525 P.2d 461 (1974).   While the exclusionary rule per se is inapplicable to probation revocation hearings, gross official misconduct by law enforcement officers is not condoned. People v. Wilkerson, 189 Colo. 448 , 541 P.2d 896 (1975).   Court not bound to apply original sentence upon revocation of probation. Because suspension of a sentence is in conjunction with, rather than contradistinction to, the imposition of a statutorily prescribed alternative to imprisonment, the sentencing court's resentencing options upon revocation were dictated by statutory provisions governing revocation of probation. Fierro v. People, 206 P.3d 460 (Colo. 2009).   Revocation without notice improper. A trial judge has no power to impose sentence upon the basis of a violation of the conditions of probation in the absence of any notice to the probationer that his probation had been extended beyond the original period. Such a sentence violates concepts of fundamental fairness and due process. Jesseph v. People, 164 Colo. 312 , 435 P.2d 224 (1967).   Where probation conditioned upon child support, finding of ability to pay required before revocation, and such finding should be made by the trial court. People v. Silcott, 177 Colo. 451 , 494 P.2d 835 (1972).   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).   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).   District court did not advise defendant of the charges against him and the possible penalties pursuant to subsection (2) or comply with § 18-1.3-1010 (2) . The court's lack of advisement and failure to follow the statutes constitutes plain error and requires reversal of the probation revocation. People v. Helms, 2016 COA 90 , 396 P.3d 1133.   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).   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).   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).   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).   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).   Probation revocation orders are reviewable by direct appeal. People v. Atencio, 186 Colo. 76 , 525 P.2d 461 (1974).   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).   Statute as basis for jurisdiction. See People v. Sandoval, 36 Colo. App. 403, 541 P.2d 105 (1975).   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); People v. Propst, 2021 COA 13 , __ P.3d __.   Subsection (5) applies to the resentencing of an offender terminated from community corrections. A resentencing on a termination from community corrections is analogous to resentencing on a probation revocation. People v. Reyes, 2016 COA 98 , 409 P.3d 501.   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); People v. Castellano, 209 P.3d 1208 (Colo. App. 2009).   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).   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).   Subsection (5) applies where probation is imposed as a condition of a suspended sentence. People v. Propst, 2021 COA 13 , __ P.3d __ (holding contrary to People v. Frye, 997 P.2d 1223 (Colo. App. 1999), annotated above).   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).   If a defendant is sentenced to jail as part of a deferred judgment probation sentence, the court may resentence the defendant to probation that includes a jail commitment after revoking the deferred judgment. People v. Gravina, 2013 COA 22 , 300 P.3d 990.   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).   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).   An order declining to revoke probation is not a final judgment within meaning of C.A.R. 1, thus the court of appeals lacked jurisdiction to entertain the appeal. People v. Guatney, 214 P.3d 1049 (Colo. 2009).   Probation revocation decision valid because defendant failed to make restitution payments and failed to show he was unable to pay his restitution obligation. People v. Roletto, 2015 COA 41 , 370 P.3d 190.   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).