2023 Colorado Revised Statutes › Title 18 - CRIMINAL CODE (§§ 18-1-101 — 18-26-102) › Article 1.3 - SENTENCING IN CRIMINAL CASES (§§ 18-1.3-101 — 18-1.3-1407) › Part 8 - SPECIAL PROCEEDINGS - SENTENCING OF HABITUAL CRIMINALS (§§ 18-1.3-801 — 18-1.3-804) › Section 18-1.3-801 - Punishment for habitual criminals

(1)
(a)
A person shall be adjudged an habitual criminal and shall be punished by a term in the department of corrections of life imprisonment if the person:
(I)
Is convicted of:
(A)
Any class 1 or 2 felony or level 1 drug felony; or
(B)
Any class 3 felony that is a crime of violence, as defined in section
18-1.3-406 (2)
; and
(II)
Has been twice convicted previously for any of the offenses described in subparagraph (I) of this paragraph (a).
(b)
A felony described in subparagraph (I) of paragraph (a) of this subsection (1) is:
(I)
One based upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, in this or any other state; or
(II)
A crime under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, which, if committed within this state, would be such a felony described in paragraph (a) of this subsection (1).
(c)
No person sentenced pursuant to this subsection (1) shall be eligible for parole until such person has served at least forty calendar years.
(d)
Nothing in this subsection (1) prohibits the governor from issuing a pardon or a clemency order on a case-by-case basis; however, the governor shall submit a report to the general assembly on each such pardon or clemency order in accordance with section 7 of article IV of the state constitution.
(e)
Nothing in this subsection (1) is to be construed to prohibit a person convicted of a class 1 felony from being sentenced pursuant to section
18-1.3-1201
for an offense charged prior to July 1, 2020, or pursuant to section
18-1.3-1302
for an offense charged prior to July 1, 2020, or pursuant to section
18-1.4-102
.
(f)
This subsection (1) shall not apply to a person convicted of first or second degree burglary, which person shall be subject to subsections (1.5), (2), and (2.5) of this section and section
18-1.3-804
.
(1.5)
Except as otherwise provided in subsection (5) of this section, every person convicted in this state of any class 1, 2, 3, 4, or 5 felony or level 1, 2, or 3 drug felony who, within ten years of the date of the commission of the said offense, has been twice previously convicted upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony shall be adjudged an habitual criminal and shall be punished:
(a)
For the felony offense of which such person is convicted by imprisonment in the department of corrections for a term of three times the maximum of the presumptive range pursuant to section
18-1.3-401
for the class or level of felony of which such person is convicted; or
(b)
For the level 1 drug felony offense of which such person is convicted by imprisonment in the department of corrections for a term of forty-eight years.
(2)
(a)
(I)
Except as otherwise provided in subsections (2)(b), (2)(c), and (5) of this section, every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony, shall be adjudged an habitual criminal and shall be punished:
(A)
For the felony offense of which such person is convicted by imprisonment in the department of corrections for a term of four times the maximum of the presumptive range pursuant to section
18-1.3-401
for the class or level of felony of which such person is convicted; or
(B)
For the level 1 drug felony offense of which such person is convicted by imprisonment in the department of corrections for a term of sixty-four years.
(II)
Such former conviction or convictions and judgment or judgments shall be set forth in apt words in the indictment or information. Nothing in this part 8 shall abrogate or affect the punishment by death in any and all crimes punishable by death on or after July 1, 1972.
(b)
The provisions of subsection (2)(a) of this section do not apply to a conviction for a level 4 drug felony committed on or after March 1, 2020, pursuant to section
18-18-403.5 (2)
, or a conviction for a level 4 drug felony committed on or after March 1, 2020, for attempt or conspiracy to commit unlawful possession of a controlled substance, as described in section
18-18-403.5 (2)
, if the amount of the controlled substance possessed is not more than four grams of any material, compound, mixture, or preparation containing any quantity of gamma hydroxybutyrate, including its salts, isomers, and salts of isomers, or not more than two grams of cathinones or ketamine, or not more than four milligrams of flunitrazepam, even if the person has been previously convicted of three or more qualifying felony convictions.
(c)
The provisions of subsection (2)(a) of this section do not apply to a conviction for a level 4 drug felony committed on or after July 1, 2022, pursuant to section
18-18-403.5
(2.5), or a conviction for a level 4 drug felony committed on or after July 1, 2022, for attempt or conspiracy to commit unlawful possession of fentanyl, carfentanil, benzimidazole opiate, or an analog thereof, as described in section
18-18-403.5
(2.5), even if the person has been previously convicted of three or more qualifying felony convictions.
(2.5)
Any person who is convicted and sentenced pursuant to subsection (2) of this section, or section
16-13-101 (2)
, C.R.S., as it existed prior to October 1, 2002, who is thereafter convicted of a felony which is a crime of violence pursuant to section
18-1.3-406
, shall be adjudged an habitual criminal and shall be punished by a term in the department of corrections of life imprisonment. No person sentenced pursuant to this subsection (2.5) shall be eligible for parole until such person has served at least forty calendar years.
(3)
No drug law conviction shall be counted as a prior felony conviction under this section unless such prior offense would be a felony if committed in this state at the time of the commission of the new offense.
(4)
A person who meets the criteria set forth in subsection (1) of this section shall be adjudged an habitual criminal and sentenced only in accordance with that subsection and not pursuant to subsections (1.5), (2), and (2.5) of this section.
(5)
A prior conviction for escape, as described in section
18-8-208 (1), (2), or (3)
, or attempt to escape, as described in section
18-8-208.1
in effect prior to March 6, 2020, with an underlying factual basis that satisfies the elements of unauthorized absence, as described in section
18-8-208.2
, or attempt thereof, may not be used for the purpose of adjudicating a person an habitual criminal, as described in subsection (1.5) or subsection (2) of this section, unless the conviction is based on the offender's escape or attempt to escape from a correctional facility, as defined in section
17-1-102
, or from physical custody within a county jail; except that, for the purposes of this section, "correctional facility" does not include a community corrections facility, as defined in section
17-27-102
(2.5), or a halfway house, as defined in section
19-2.5-102
.
(6)
(a)
For offenses committed on or after July 1, 2023, a defendant convicted and sentenced as an habitual offender pursuant to this section who has been sentenced to twenty-four years or more in the department of corrections and has served at least ten calendar years of a sentence for a felony offense for which the person was sentenced as an habitual criminal may petition the court for a modification of that sentence or for counsel to assist in filing the petition and any other habitual sentence for which the defendant is imprisoned in the department of corrections. The court shall appoint counsel for the defendant from the office of state public defender and shall serve an order of appointment on the office, which shall represent the defendant or notify the court of a conflict. The court shall allow counsel to supplement the petition.
(b)
The court shall set the matter for evidentiary hearing. At the hearing, the defendant has the burden of demonstrating, by a preponderance of the evidence, that:
(I)
The statutory eligibility criteria are met;
(II)
There are mitigating factors regarding the defendant's circumstances at the time of conviction or substantial mitigating factors regarding the circumstances of the offense or offenses;
(III)
The defendant has demonstrated positive, engaged, and productive behavior in the department of corrections; and
(IV)
The defendant does not currently present a risk to the community at large.
(c)
If the defendant satisfies the burden described in subsection (6)(b) of this section and the court determines, based on the totality of the circumstances, that a modification of sentence is justified, the court may resentence the defendant to a term of at least the midpoint in the aggravated range for the class of felony for which the defendant was convicted, up to a term less than the current sentence.
Amended by 2023 Ch. 297,§ 2, eff. 7/1/2023.
Amended by 2022 Ch. 225, § 33, eff. 7/1/2022, app. to offenses committed on or after 7/1/2022.
Amended by 2021 Ch. 136, § 46, eff. 10/1/2021.
Amended by 2021 Ch. 459, § 10, eff. 7/6/2021.
Amended by 2020 Ch. 61, § 11, eff. 3/23/2020.
Amended by 2020 Ch. 9, § 11, eff. 3/6/2020.
Amended by 2019 Ch. 291, § 8, eff. 3/1/2020.
Amended by 2017 Ch. 374, § 1, eff. 8/9/2017.
Amended by 2014 Ch. 391, § 13, eff. 7/1/2014.
Amended by 2013 Ch. 333, § 36, eff. 10/1/2013.
L. 2002: Entire article added with relocations, p. 1426, § 2, effective October 1. L. 2002, 3rd Ex. Sess.: (1)(e) amended, p. 33, § 28, effective October 1. L. 2003: (2.5) amended, p. 978, § 16, effective April 17; IP(1)(a), (1.5), (2), and (2.5) amended, p. 1426, § 5, effective April 29. L. 2011: (2) amended, (SB 11 -096), ch. 151, p. 151, § 1, effective March 25. L. 2012: (1.5) and (2)(a) amended and (5) added, (HB 12-1213), ch. 695, p. 695, § 1, effective May 17. L. 2013: (1)(a)(I)(A), (1.5), and (2) amended, (SB 13-250), ch. 333, p. 1927, § 36, effective October 1. L. 2014: (2)(b) amended, (SB 14-163), ch. 1975, p. 1975, § 13, effective July 1. L. 2017: (5) amended, (HB 17-1330), ch. 1937, p. 1937, § 1, effective August 9. L. 2019: (2)(b) amended, (HB 19-1263), ch. 2681, p. 2681, § 8, effective 3/1/2020. L. 2020: (5) amended, (HB 20 -1019), ch. 28, p. 28, § 11, effective March 6; (1)(e) amended, (SB 20 -100), ch. 211, p. 211, § 11, effective March 23. L. 2021: (5) amended, (SB 21-146), ch. 3086, p. 3086, § 10, effective July 6; (5) amended, (SB 21-059), ch. 721, p. 721, § 46, effective October 1.
(1) This section is similar to former § 16-13-101 as it existed prior to 2002.
(2) Amendments to subsection (2.5) by Senate Bill 03-147 and House Bill 03-1236 were harmonized.
(3) Amendments to subsection (5) by SB 21-146 and SB 21-059 were harmonized.
For the legislative declaration contained in the 2002 act amending subsection (1)(e), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session.