CO Code § 18-21-103 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 21 - Sex Offender Surcharge|§ 18-21-103. Source of Revenues - Allocation of Money - Sex Offender Surcharge Fund - Sexual Exploitation of Children Surcharge Fund - Creation

  On and after July 1, 1992, each person who is convicted of a sex offense, or receives for such offense a deferred sentence pursuant to section 18-1.3-102, shall be required to pay a surcharge to the clerk of the court in which the conviction occurs or in which the deferred sentence is entered. Such surcharge shall be in the following amounts:   For each class 2 felony of which a person is convicted, three thousand dollars;    For each class 3 felony of which a person is convicted, two thousand dollars;    For each class 4 felony of which a person is convicted, one thousand dollars;    For each class 5 felony of which a person is convicted, seven hundred fifty dollars;    For each class 6 felony of which a person is convicted, five hundred dollars;    For each class 1 misdemeanor of which a person is convicted, four hundred dollars;    For each class 2 misdemeanor of which a person is convicted, three hundred dollars;    For each class 3 misdemeanor of which a person is convicted, one hundred fifty dollars. (1.5) Repealed.       The clerk of the court shall allocate the surcharge required by subsection (1) of this section as follows:   Five percent shall be retained by the clerk for administrative costs incurred pursuant to this subsection (2). Such amount retained shall be transmitted to the state treasurer, who shall credit the same to the general fund, and such amount shall be subject to appropriation by the general assembly for the costs of such administration.    Ninety-five percent shall be transferred to the state treasurer who shall credit the same to the sex offender surcharge fund created pursuant to subsection (3) of this section.       There is hereby created in the state treasury a sex offender surcharge fund which shall consist of moneys received by the state treasurer pursuant to paragraph (b) of subsection (2) of this section. The state treasurer may invest any moneys in the fund not expended for the purpose of this section as provided by law. The state treasurer shall credit all interest and income derived from the investment and deposit of moneys in the fund to the fund. Any moneys not appropriated by the general assembly shall remain in the sex offender surcharge fund and shall not be transferred or revert to the general fund of the state at the end of any fiscal year. All moneys in the fund shall be subject to annual appropriation by the general assembly to the judicial department, the department of corrections, the division of criminal justice of the department of public safety, and the department of human services, after consideration of the plan developed pursuant to section 16-11.7-103 (4)(c), C.R.S., to cover the direct and indirect costs associated with the evaluation, identification, and treatment and the continued monitoring of sex offenders. (3.3)   On and after January 1, 2022, each person who is convicted of or receives a deferred sentence pursuant to section 18-1.3-102 for sexual exploitation of a child, as described in section 18-6-403, is required to pay a sexual exploitation of children surcharge in addition to the sex offender surcharge required pursuant to subsection (1) of this section to the clerk of the court where the conviction occurs or the deferred sentence is entered. The amount of the additional surcharge is, based on the highest penalty level among the crimes of conviction or deferred sentence in the case:   For a class 3 felony of which a person is convicted, two thousand dollars;    For a class 4 felony of which a person is convicted, one thousand dollars;    For a class 5 felony of which a person is convicted, five hundred dollars; and    For a class 6 felony of which a person is convicted, two hundred and fifty dollars.       A juvenile who is convicted or receives a deferred sentence pursuant to section 18-1.3-102 for sexual exploitation of a child, as described in section 18-6-403, is not required to pay an additional surcharge pursuant to subsection (3.3)(a) of this section. (3.5) The clerk of the court shall allocate the surcharge required by subsection (3.3) of this section as follows:   The clerk of the court shall retain five percent for administrative costs incurred pursuant to this subsection (3.5). The clerk of the court shall transmit the amount retained pursuant to this subsection (3.5)(a) to the state treasurer, who shall credit the amount to the general fund. The amount is subject to appropriation by the general assembly for the costs of such administration.    The clerk of the court shall transmit ninety-five percent to the state treasurer, who shall credit the amount to the sexual exploitation of children surcharge fund created in subsection (3.7) of this section. (3.7)   There is hereby created in the state treasury the sexual exploitation of children surcharge fund, referred to in this subsection (3.7) as the “fund”, that consists of money received by the state treasurer pursuant to subsection (3.5) of this section. The money in the fund is continuously appropriated to the Colorado bureau of investigation in the department of public safety to enhance the effective investigation and prosecution of computer-facilitated sexual exploitation of children pursuant to section 24-33.5-430.    The state treasurer may invest any money in the fund not expended for the purpose of this section as provided by law. The state treasurer shall credit all interest and income derived from the investment of money in the fund to the fund. Any money not appropriated by the general assembly and all unexpended and unencumbered money at the end of the fiscal year remains in the fund and must not be transferred or revert to the general fund at the end of any fiscal year.             The court may waive all or any portion of a surcharge required by this section if the court finds that a person is indigent or financially unable to pay all or any portion of such surcharge. The court shall waive only that portion of a surcharge if the court has found that the person is financially unable to pay.     History. Source: L. 92: Entire article added, p. 462, § 10, effective June 2. L. 94: (3) amended, p. 2657, § 141, effective July 1. L. 2000: (1.5) added, p. 923, § 13, effective July 1. L. 2002: IP(1) amended, p. 1522, § 220, effective October 1. L. 2012: (3) amended,(HB 12-1310), ch. 268, p. 1398, § 17, effective June 7. L. 2021: (1.5) repealed,(HB 21-1315), ch. 461, p. 3109, § 8, effective July 6; (3.3), (3.5), and (3.7) added and (4) amended,(HB 21-1069), ch. 446, p. 2943, § 5, effective September 7.    Editor's note:   Section 9(2) of chapter 446 (HB 21-1069), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after September 7, 2021.   Cross references:    For the legislative declaration contained in the 2002 act amending the introductory portion to subsection (1), see section 1 of chapter 318, Session Laws of Colorado 2002.    For the legislative declaration in HB 21-1069 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to § 2-2-1201 scheduled in 2024, see sections 1 and 7 of chapter 446, Session Laws of Colorado 2021. To obtain a copy of the review, once completed, go to “Legislative Resources and Requirements” on the Colorado General Assembly's website.     ANNOTATION   Surcharge improperly applied where offense occurred approximately 18 months before section enacted. People v. Salas, 902 P.2d 398 (Colo. App. 1994).   Imposition of two surcharges for conviction does not violate the prohibition against double jeopardy. The surcharge created by subsection (1)(c) and the surcharge created by § 24-4.2-104 (1)(a)(II) (A) may both be applied to the conviction for second degree sexual assault. People v. Thien Van Vo, 932 P.2d 849 (Colo. App. 1996).   Assessment of surcharges pursuant to this section violates the prohibition against ex post facto laws since the offenses at issue occurred before the effective date of this section. People v. Bowring, 902 P.2d 911 (Colo. App. 1995).   Imposition of the mandatory $1,000 fine for persons convicted of a class 4 felony sex offense was not unconstitutionally excessive where the trial court discussed the defendant's ability to pay the surcharge at the sentencing hearing and defendant did not object to the amount of the fine or request a reduction of the amount. People v. Bolt, 984 P.2d 1181 (Colo. App. 1999).   The surcharge amounts specified in this section are not disproportionate to the levels of offenses as a matter of law. People v. Bolt, 984 P.2d 1181 (Colo. App. 1999).   Trial court improperly imposed surcharge where defendant plead guilty to an offense that is not included in the definition of “sex offense” in § 16-11.7-102 . Although defendant was a “sex offender”, as defined in § 16-11.7-102 , because her plea was based on acts that were included in the definition of “sex offense” and thus created a history of sex offenses, the surcharge created in this section applies only to persons convicted of a “sex offense”. People v. Meidinger, 987 P.2d 937 (Colo. App. 1999).