COCODE

18-1.3-102. Deferred sentencing of defendant.

Statute text

(1) (a) In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for the purpose of entering judgment and sentence upon the plea of guilty for a period not to exceed four years for a felony or two years for a misdemeanor or petty offense or traffic offense. The period shall begin to run from the date that the court continues the case.

(b) The period may be extended for an additional time:

(I) Up to one hundred eighty-two days if the failure to pay restitution is the sole condition of supervision which has not been fulfilled, because of inability to pay, and the defendant has shown a future ability to pay. During such time, the court may place the defendant under the supervision of the probation department; or

(II) Up to two years if the deferred judgment is for an offense listed in section 16-11.7-102 (3), C.R.S., good cause is shown, and the district attorney and defendant consent to the extension.

(2) Prior to entry of a plea of guilty to be followed by deferred judgment and sentence, the district attorney, in the course of plea discussion as provided in sections 16-7-301 and 16-7-302, is authorized to enter into a written stipulation to be signed by the defendant, the defendant's attorney of record, and the district attorney, under which the defendant is obligated to adhere to such stipulation. The conditions imposed in the stipulation and the responses to violation behavior are similar to probation. A person convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3 (1), shall stipulate to the conditions specified in section 18-1.3-204 (2)(b). In addition, the stipulation may require the defendant to perform community or charitable work service projects or make donations thereto. Upon full compliance with such conditions by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice. The stipulation shall specifically provide that, upon a breach by the defendant of any condition regulating the conduct of the defendant, the court shall enter judgment and impose sentence upon the guilty plea; except that, if the offense is a violation of article 18 of this title 18, the court may accept an admission or find a violation of the stipulation without entering judgment and imposing sentence if the court first makes findings of fact on the record stating the entry of judgment and sentencing would not be consistent with the purposes of sentencing, that the defendant would be better served by continuing the deferred judgment period, and that public safety would not be jeopardized by the continuation of the deferred judgment. If the court makes those findings and continues the deferred judgment over the objection of the prosecution, the court shall also impose additional and immediate sanctions upon the defendant to address the violation, to include, but not be limited to, the imposition of further terms and conditions that will enhance the likelihood of the defendant's success, respond to the defendant's noncompliance, and promote further individual accountability, including extending the time period of the deferred judgment for up to two additional years or incarceration in the county jail for a period not to exceed ninety days consistent with the provisions of section 18-1.3-202 (1), or both. When, as a condition of the deferred sentence, the court orders the defendant to make restitution, evidence of failure to pay the restitution shall constitute prima facie evidence of a violation. Whether a breach of condition has occurred shall be determined by the court without a jury upon application of the district attorney or a probation officer and upon notice of hearing thereon of not less than seven days to the defendant or the defendant's attorney of record. Application for entry of judgment and imposition of sentence may be made by the district attorney or a probation officer at any time within the term of the deferred judgment or within thirty-five days thereafter. The burden of proof at the hearing shall be by a preponderance of the evidence, and the procedural safeguards required in a revocation of probation hearing shall apply.

(3) When a defendant signs a stipulation by which it is provided that judgment and sentence shall be deferred for a time certain, he or she thereby waives all rights to a speedy trial, as provided in section 18-1-405.

(4) A warrant for the arrest of any defendant for breach of a condition of a deferred sentence may be issued by any judge of a court of record upon the report of a probation officer, or upon the verified complaint of any person, establishing to the satisfaction of the judge probable cause to believe that a condition of the deferred sentence has been violated and that the arrest of the defendant is reasonably necessary. The warrant may be executed by any probation officer or by a peace officer authorized to execute warrants in the county in which the defendant is found.

History

Source: L. 2002: Entire article added with relocations, p. 1366, 2, effective October 1. L. 2012: (1) amended, (HB 12-1310), ch. 268, p. 1396, 11, effective June 7; (1) and (2) amended, (SB 12-175), ch. 208, p. 863, 106, effective July 1. L. 2013: (2) amended, (SB 13-250), ch. 333, p. 1941, 64, effective October 1. L. 2022: (2) amended, (HB 22-1257), ch. 69, p. 357, 9, effective April 7.

Annotations

Editor's note: (1) This section is similar to former 16-7-403 as it existed prior to 2002.

(2) Amendments to subsection (1) by House Bill 12-1310 and Senate Bill 12-175 were harmonized.

Annotations

ANNOTATION

Annotations

Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982).

Annotator's note. Since 18-1.3-102 is similar to 16-7-403 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.

Constitutional due process requirements regarding advisement of possible penalties do not apply to Crim. P. 11(b) in a hearing to revoke a deferred judgment. Defendant's admission that he violated the terms of the deferred judgment was valid. Due process does not require that defendant be readvised of the potential penalties after defendant was advised of the possible penalties when entering into the deferred judgment. People v. Finney, 2012 COA 38, 328 P.3d 205, aff'd, 2014 CO 38, 325 P.3d 1044.

Probation-like supervision of a defendant by adult diversion program in a district attorney's office was not a violation of separation of powers. Probation is not a necessary function of the judiciary, and there is no constitutional requirement that defendants on deferred judgment be supervised by the judicial branch. People v. Method, 900 P.2d 1282 (Colo. App. 1994).

The diversion program does not constitute an unconstitutional delegation of power to the district attorney because the probation statutes set forth adequate guidelines for imposing conditions of probation and provide adequate standards and safeguards for imposing conditions of deferred judgment. People v. Bishop, 7 P.3d 184 (Colo. App. 1999).

This section does not limit the broad grant of power to the courts under the probation statutes. People v. Burleigh, 727 P.2d 873 (Colo. App. 1986).

Prohibiting a sex offender from having contact with children including his or her own without approval of the court as a condition of a deferred judgment is permissible. The condition falls under "any other conditions reasonably related to his or her rehabilitation and the purpose of the supervisory period imposed by the court" provision. The condition does not infringe upon the parent's liberty interest in raising his or her children when children are potential victims of the offender. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003).

Beyond reasonable doubt standard of proof. An adult charged with a violation of his deferred sentencing which constitutes a criminal offense has the right to demand that the charge be proven "beyond a reasonable doubt". People v. Van Deusen, 677 P.2d 402 (Colo. App. 1983).

Under the provisions of subsection (2), a defendant who enters into a deferred sentencing agreement "is obligated to adhere to such stipulation." People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003); Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).

Thus, the general assembly has determined as a matter of public policy that the terms of stipulations are to be enforced. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003).

Because a defendant who enters into a deferred sentencing agreement is obligated to adhere to the stipulation, the trial court must be permitted to review the terms of the agreement to determine whether the defendant is in compliance with those terms. Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).

Purpose of the written stipulation is to ensure that the defendant knows prior to the entry of a guilty plea the consequences of violating the conditions of the deferred judgment and sentence. People v. Widhalm, 642 P.2d 498 (Colo. 1982).

District court has jurisdiction to order a deferred judgment and sentence even when defendant appears pro se. The written authorization requirement set forth is not jurisdictional in nature. People v. Loveall, 231 P.3d 408 (Colo. 2010).

Appeal dismissed for lack of jurisdiction. A guilty plea entered pursuant to a deferred judgment and sentence agreement is not subject to review in the same manner as a guilty plea that results in a final conviction or delinquency adjudication. People ex rel. K.W.S., 192 P.3d 579 (Colo. App. 2008).

When a defendant has received the benefit of a bargain made and has at no time objected to any term of the subsequent judgment and stipulation, there is no basis in public policy to permit the defendant to renege on that portion of the agreement expressly waiving the right to request the sealing of the record. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003); Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).

Permitting defendant to do so would contravene the language and policy of the statute and could greatly reduce the use of such stipulations in practice. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003).

Trial court lacks authority under this section to act unilaterally to modify the terms of a stipulation without the district attorney's consent. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003); Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).

Trial court had no authority to order a deferred sentence in absence of written consent of defendant, defendant's attorney, and district attorney under plain language of subsection (1). People v. Appelhanz, 738 P.2d 1182 (Colo. 1987).

Subsection (1) requires the written consent of defense counsel only if the defendant is represented. People v. Loveall, 203 P.3d 540 (Colo. App. 2008), aff'd on other grounds, 231 P.3d 408 (Colo. 2010).

Trial court does not have authority to act unilaterally with deferred sentence agreements, including shortening a stipulated length of a deferred sentence and a sentence agreement without the district attorney's consent. People v. C.G., 12 P.3d 861 (Colo. App. 2000).

Court has authority to consider a plea of nolo contendere in circumstances involving plea agreements that contemplate deferred sentences under the statute. People v. Darlington, 105 P.3d 230 (Colo. 2005).

There is no distinction between a plea of nolo contendere and a plea of guilty for sentencing purposes. People v. Darlington, 105 P.3d 230 (Colo. 2005).

Trial court has authority to impose an aggravated range sentence even though it had previously imposed a deferred sentence. Nothing in the plain language of this section suggests that the sentencing range upon imposition of a previously deferred sentence differs in any way from the range that would have applied absent deferral. People v. Lopez, 97 P.3d 223 (Colo. App. 2004).

Evidence from a dismissed revocation complaint of a deferred judgment may not form the basis of a subsequent revocation complaint. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003).

Section mandates that court impose sentence and does not leave such imposition to the court's discretion. People v. Adair, 44 Colo. App. 423, 620 P.2d 46 (1980), aff'd in part and rev'd in part on other grounds, 651 P.2d 389 (Colo. 1982).

"Sentence" does not mean imprisonment. A "sentence" generally refers to that part of a judgment which describes the punishment imposed by the court following the defendant's conviction for a criminal offense. To constitute a "sentence", the punishment need not take the form of imprisonment. People v. Turner, 644 P.2d 951 (Colo. 1982).

Although the defendant's sentence to imprisonment and mandatory parole was not inevitable at the time of his pleas and, in fact, could not have been lawfully imposed prior to his subsequent breach of the terms of his deferred sentencing agreement, it was a direct consequence of his plea to burglary and, therefore, the defendant should have been advised of the mandatory parole. People v. Marez, 39 P.3d 1190 (Colo. 2002).

Discretion implicit in sentencing decision is not unrestricted discretion devoid of reason or principle. People v. Watkins, 613 P.2d 633 (Colo. 1980).

Extension of deferred judgment discretionary. While there is not express statutory authority that permits the court to extend the period of a deferred judgment and sentence beyond that initially imposed, such authority is encompassed in the broad discretionary power of the court. People v. Blackorby, 41 Colo. App. 251, 583 P.2d 949 (1978) (decided prior to 1985 amendment to subsection (1)).

However, the court has no jurisdiction to extend the deferral to more than the two-year period in the statute. People v. Perkins, 676 P.2d 711 (Colo. App. 1983) (decided prior to 1985 amendment to subsection (1)); People v. Zabala, 706 P.2d 807 (Colo. App. 1985).

Under subsection (1), a trial court may extend a deferred judgment for any legitimate reason and as many times as it deems appropriate, so long as the period of deferred judgment does not exceed four years. Carrera v. People, 2019 CO 83, 449 P.3d 725 (decided under former law).

When a defendant has been on a deferred judgment for four years, the trial court may extend the deferred judgment for a period not to exceed 180 days, so long as the payment of restitution is the only condition of supervision not yet fulfilled. Carrera v. People, 2019 CO 83, 449 P.3d 725 (decided under former law).

A deferred judgment is created and authorized by statute and a trial court lacks authority to impose a deferred judgment outside of the statute's limitations. The trial court exceeded its jurisdiction by extending defendant's deferred judgment beyond the statutory limits. People v. Carbajal, 198 P.3d 102 (Colo. 2008).

Once the court imposes a deferred judgment, the four-year time period starts the day defendant entered his or her plea. Judgment and sentence must be entered within four years unless the deferred judgment is revoked or extended for restitution. The statute divests the court of its authority to hear revocation petitions filed more than 30 days after the deferred judgment expires. People v. Carbajal, 198 P.3d 102 (Colo. 2008).

Because the court lacks the authority to enforce an agreed-upon extension of the deferred judgment beyond the statutory time limitations, it also lacks authority to enforce such an extension framed as a stipulation to new supervision requirements. People v. Carbajal, 198 P.3d 102 (Colo. 2008).

The court has discretion to extend the deferral period, subject to the time limitations in this section, in order to give the defendant additional time to pay restitution. People v. Nichols, 140 P.3d 198 (Colo. App. 2006).

Trial court had no authority to revoke a deferred judgment sua sponte. In absence of an application by the district attorney, specifically required by subsection (2), revocation was improper. People v. Berquist, 916 P.2d 629 (Colo. App. 1996).

District court did not exceed its jurisdiction in granting district attorney's application, entering judgment against defendant for sexual assault on a child by one in a position of trust, and sentencing defendant to six years of probation. Because the district attorney's application was only withdrawn on condition that the court continue the case for an additional four-year period, which it lacked the authority to do, the application was never abandoned. People v. Simonds, 113 P.3d 762 (Colo. 2005).

Time limit for filing of application for entry of judgment not tolled by order of revocation. Where district attorney did not file application "within the term of the deferred judgment or within thirty days thereafter," as required by subsection (2), such application would not be permitted upon remand. People v. Berquist, 916 P.2d 629 (Colo. App. 1996).

Constitutional rights somewhat limited. Persons alleged to have violated a condition of a deferred sentence are not entitled to the full panoply of constitutional rights accorded persons who have not admitted guilt of criminal conduct. People v. Boykin, 631 P.2d 1149 (Colo. App. 1981).

But adequate notice deemed minimum right. Consistent with principles of due process, persons alleged to have violated a condition of a deferred sentence must, at a minimum, be given adequate notice of the charges against which they must defend. People v. Boykin, 631 P.2d 1149 (Colo. App. 1981); People v. Allen, 952 P.2d 764 (Colo. App. 1997), rev'd on other grounds, 973 P.2d 620 (Colo. 1999).

Trial court advising defendant and counsel three days before revocation hearing held to be adequate notice of charge against which person had to defend. People v. Galloway, 677 P.2d 1380 (Colo. App. 1983).

Proceedings to revoke deferred judgment are conducted according to procedures used to revoke probation. Thus, the defendant is not entitled to the full range of constitutional rights in a criminal trial. The right to confront witnesses is satisfied by the right to cross exam hearsay statements and presentation of evidence to the contrary. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003).

Corroboration of a confession is not required in deferred judgment. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003).

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).

Counsel not necessary where defendant makes request for extension. Where the defendant requests an extension of the supervisory period, the granting of the extension does not violate due process because he was not represented by counsel, or because the trial court did not make a determination as to whether fundamental fairness required that counsel be appointed to represent him. People v. Blackorby, 41 Colo. App. 251, 583 P.2d 949 (1978).

Revocation hearing is trial-type procedure. A revocation hearing under this section is a trial-type procedure conducted by the trial court for the purpose of making a factual determination as to whether there has been a failure to abide by the conditions of a deferred sentence. Hallman v. People, 652 P.2d 173 (Colo. 1982).

And 15-day limitation for hearing applies. Since the 15-day limitation imposed by 16-11-206 (4) is a procedural safeguard required for probation revocation hearings, it applies to a deferred sentence revocation pursuant to this section. People v. Schoonover, 654 P.2d 1340 (Colo. App. 1982); People v. Allen, 952 P.2d 764 (Colo. App. 1997), rev'd on other grounds, 973 P.2d 620 (Colo. 1999).

Since the five-day limitation specified in 16-11-205 (4) is not a procedural safeguard required in a probation revocation hearing pursuant to 16-11-206, but rather is a prehearing requirement imposed on the probation officer, it is not within the contemplation of subsection (2). People v. Schoonover, 654 P.2d 1340 (Colo. App. 1982).

Conviction entered upon finding that defendant violated condition. This section requires the court to enter a judgment of conviction upon finding at a revocation hearing that the defendant has violated the condition of a deferred judgment. People v. Widhalm, 642 P.2d 498 (Colo. 1982); People v. Wilder, 687 P.2d 451 (Colo. 1984); People v. Nichols, 140 P.3d 198 (Colo. App. 2006).

Once the trial court finds that a violation has been proven by a preponderance of the evidence, the deferred sentence must be revoked. Adair v. People, 651 P.2d 389 (Colo. 1982).

Scope of revocation hearing. In a revocation hearing, the court need only apprise itself of facts which convince it that the conditions of the deferred sentence have been breached. People v. Adair, 44 Colo. App. 423, 620 P.2d 46 (1980), aff'd in part and rev'd in part on other grounds, 651 P.2d 389 (Colo. 1982).

Standard of proof for violation of deferred sentence. To support a revocation, a violation of the deferred sentence need only be proven by a preponderance of the evidence. Once the proof has been made and the court finds that the terms of the deferred judgment were violated the court must act to revoke the deferred judgment status, enter judgment, and impose sentence upon the defendant's guilty plea. Adair v. People, 651 P.2d 389 (Colo. 1982).

Court does not have to find reasonable doubt that defendant violated law because the court's acceptance of defendant's guilty plea amounted to a conviction. People v. Blackwell, 2016 COA 136, 409 P.3d 558.

Question of whether the defendant failed to cooperate in a treatment program which was a condition of the deferred judgment is one of fact for the trial court. People v. Galloway, 677 P.2d 1380 (Colo. App. 1983).

Statutory standard that defendant had ability to pay restitution but failed to do so was satisfied by the district court finding that defendant had money during the deferral period which he could have paid to the probation department, but which he chose, instead, to pay to his mother. People v. Zabala, 706 P.2d 807 (Colo. App. 1985).

Defendant's financial ability to pay restitution is a defense to a charge of violating restitution requirement of deferred sentence. People v. Afentul, 773 P.2d 1081 (Colo. 1989). But see Williams v. People, 2019 CO 101, 454 P.3d 219.

Defendant must prove his or her financial inability to pay restitution. Once the prosecution presents evidence of the defendant's failure to pay restitution, the burden shifts to the defendant to prove his or her financial inability to pay restitution. People v. Rivera-Bottzeck, 119 P.3d 546 (Colo. App. 2004).

When a defendant introduces some evidence of inability to pay restitution, the court must make ability-to-pay findings under 18-1.3-702 (3)(c) before revoking a deferred judgment for failure to pay. The prosecution bears the burden of proving by a preponderance of evidence that the defendant (1) has the ability to comply with the court's order to pay a monetary amount due without undue hardship to the defendant or the defendant's dependents, and (2) has not made a good-faith effort to comply with the order. Williams v. People, 2019 CO 101, 454 P.3d 219.

Court may grant probation upon revocation of deferred judgment and sentence. As long as a defendant is otherwise eligible for probation, a court may grant him probation upon the revocation of a deferred judgment and sentence. People v. Turner, 644 P.2d 951 (Colo. 1982).

Evidence of defendant's failure to pay restitution is prima facie evidence that defendant has violated the conditions of his deferred sentencing which, if not rebutted or contradicted, will sustain the entry of a judgment of conviction and the imposition of sentence. People v. McPherson, 897 P.2d 923 (Colo. App. 1995).

Defendant's two-year deferred sentence for a traffic violation in Colorado could not be used to enhance his criminal history category under the federal sentencing guidelines for a later conviction involving distribution of cocaine. United States v. Kipp, 10 F.3d 1463 (9th Cir. 1993).

Battery, in violation of Aurora Municipal Code, was an "offense" in violation of stipulation for deferred judgment and sentence. People v. Slayton, 878 P.2d 106 (Colo. App. 1994).

Absence of defendant's signature on joint motion immaterial where defendant received benefits under deferred judgment, signed consent form in interview with probation officer, and made initial payment of restitution. People v. McPherson, 897 P.2d 923 (Colo. App. 1995).

This section does not limit the broad grant of power to the courts under the probation statutes. People v. Burleigh, 727 P.2d 873 (Colo. App. 1986).

As sentence imposed following revocation is within trial court's discretion. When a deferred judgment is revoked in a felony case, sentencing to the penitentiary is not mandatory. The type of sentence to be imposed after the revocation of the deferred sentence is a matter within the discretion of the trial court, and a defendant is entitled to a consideration of all statutory sentencing alternatives at the time the deferred sentence is revoked and judgment of conviction is entered against him. Adair v. People, 651 P.2d 389 (Colo. 1982).

Appeal or review of revocation of deferred sentence available. A defendant may either appeal an order revoking a deferred sentence, pursuant to C.A.R. 1 or file a motion for post-conviction review, pursuant to Crim. P. 35(c). People v. Boykin, 631 P.2d 1149 (Colo. App. 1981).

When revocation of deferred sentence reviewable. The provisions of Crim. P. 33(a), precluding appellate review absent a motion for a new trial, apply to the revocation of a deferred sentence. People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980), aff'd, 652 P.2d 173 (Colo. 1982).

Where two-year limitation on revocation of deferred sentence tolled. Where a complaint and arrest warrant are issued within the statutory period and the defendant is voluntarily absent from the jurisdiction, or is imprisoned on another offense, the two-year limitation on revocation of a deferred sentence is tolled. People v. Peretsky, 44 Colo. App. 270, 616 P.2d 170 (1980).

A revocation petition must be filed within the term of the deferred judgment or within 30 days thereafter, unless the time limitation is tolled. A letter from the investigator to the court and the issuance of a bench warrant during the term of the deferred judgment was not sufficient to toll the time limitation. People v. Guerrero, 26 P.3d 537 (Colo. App. 2001).

Amended revocation petition filed after expiration of the deferred judgment term is proper if initial petition is filed before expiration and effectively tolls the time limitation of this section. People v. Nichols, 140 P.3d 198 (Colo. App. 2006).

Motion for new trial is prerequisite for appellate review of revocation of probation except when the propriety of a sentence is being appealed as provided in C.A.R. 4(c). People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980), aff'd, 652 P.2d 173 (Colo. 1982).

Compliance with the motion for a new trial requirement of Crim. P. 33(a) is a prerequisite for appellate review of a trial court's judgment revoking a deferred sentence and imposing a sentence. Hallman v. People, 652 P.2d 173 (Colo. 1982).

And procedural considerations governing section are analogous to those governing probation. People v. Peretsky, 44 Colo. App. 270, 616 P.2d 170 (1980); People v. Zabala, 706 P.2d 807 (Colo. App. 1985).

Therefore, filing of the revocation petition by the probation department in no way prejudiced the defendant. People v. Zabala, 706 P.2d 807 (Colo. App. 1985).

No double jeopardy prohibition was implicated when deferred judgment and sentence for possession of a controlled substance was revoked, where the trial court based its sentencing decision, in part, on the facts of the later vehicular homicide offense. People v. Lopez, 97 P.3d 223 (Colo. App. 2004).

Application for deferred sentencing does not constitute waiver of right to preliminary hearing. Celestine v. District Court, 199 Colo. 514, 610 P.2d 1342 (1980).

Guilty plea accepted by court constitutes jeopardy. A plea of guilty under this section, when accepted by the court, resolves the issue of guilt and constitutes jeopardy. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).

So withdrawal or cancellation of deferred sentence affects sentence not conviction. Where the trial court withdraws or cancels the imposition of the deferred sentence, its order affects only the sentence and does not touch the conviction. People v. Peretsky, 44 Colo. App. 270, 616 P.2d 170 (1980).

Deferred judgment revoked but reinstated. Where the commission of a crime charged and the conviction thereof is the sole basis of the revocation of a previous deferred judgment and subsequent imposition of sentence, the validity of the revocation must be tested by the validity of the conviction. Where the conviction is then reversed, and a judgment of acquittal was entered on the criminal charges, defendant is entitled to have the deferred judgment reinstated. People v. Anzures, 670 P.2d 1258 (Colo. App. 1983).

Section not applicable to mandatory sentence. The sentence requirement in 42-2-206 remains mandatory and is not subject to plea bargaining to obtain a deferred sentence as generally allowed by this section. Walker v. District Court, 199 Colo. 128, 606 P.2d 70 (1980).

Prosecution dismissed under this section not basis for civil action. As a matter of public policy, one who acknowledges his guilt of a criminal act, even though the case is subsequently dismissed under the deferred judgment plan, may not use that criminal prosecution as a basis for a civil malicious prosecution action. Land v. Hill, 644 P.2d 43 (Colo. App. 1981).

Subsection (2) requires that a plea be deemed withdrawn and the charge dismissed once a deferred judgment is successfully completed, and when an order to this effect is not entered, it occurs by operation of law. Flores-Heredia v. People, 2017 CO 64, 395 P.3d 800.

When defendant successfully completed a deferred judgment, defendant's plea was withdrawn and the charge was dismissed with prejudice pursuant to subsection (2). The plain terms of Crim. P. 32(d) require a plea to exist in order for it to be withdrawn. Because defendant's plea had already been withdrawn and the case dismissed, there was no plea to be withdrawn. People v. Corrales-Castro, 2017 CO 60, 395 P.3d 778; Espino-Paez v. People, 2017 CO 61, 395 P.3d 786; Zafiro-Guillen v. People, 2017 CO 62, 395 P.3d 781; People v. Roman, 2017 CO 63, 395 P.3d 799.

Applied in People v. Vollentine, 643 P.2d 800 (Colo. App. 1982); People v. Martinez, 657 P.2d 967 (Colo. App. 1982); Corr v. District Court, 661 P.2d 668 (Colo. 1983); Hafelfinger v. District Court, 674 P.2d 375 (Colo. 1984).