Understanding Colorado’s Pre-Sentence Credit Laws – Credit For Time Served – 18-1.3-405

Understanding Colorado’s Pre-Sentence Credit Laws – Credit For Time Served – 18-1.3-405

By H. Michael Steinberg Colorado Domestic Violence Criminal Defense Lawyer – Attorney

Understanding Colorado’s Pre-Sentence Credit Laws - Credit For Time Served - 18-1 -405 Understanding Colorado’s Pre-Sentence Credit Laws – Credit For Time Served – 18-1.3-405 – There is a complexity that surrounds the computation of pre-sentence confinement credit that makes the calculation of that credit difficult for both the Judge and the lawyers involved in a Colorado Criminal case.

I have written on this subject before, a couple of times, and whenever a new case is decided that sheds additional light on the subject – I have used that case to assist in the analysis of presentence confinement credit cases.

On Thursday, May 19, 2016 a section of the Colorado Court of Appeals decided the case of People v Fransua. The case addresses the calculation of presentence confinement credit.

Pre-Sentence Confinement Credit – Some Basic Rules

First – and very importantly, there exists no constitutional right to receive credit for presentence confinement. The law provides for credit for time served prior to the commencement of sentence. Again, credit for presentence confinement is not a matter of right, while counterintuitive – there is no constitutional right to this credit.

Trial Courts cannot refuse to award legally “earned” presentence confinement credit. A sentencing court does not have discretion to grant or deny presentence confinement credit.

Here is the general rule – taken from the statute – 18-1.3-405

A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his or her sentence for the entire period of such confinement.

The Law – § 18-1.3-405

It is up to the Defendant to PROVE – known as the burden of proof – that he or she is entitled to Presentence Confinement Credit

The calculation and award of presentence confinement credit happens at the time of sentencing at which time the Court makes “a finding” of the amount of presentence confinement to which the offender is entitled and then orders that number of days be noted on the Court Order for sentencing in the case which is known as the “mittimus.”

The credit is then deducted by either the county jail or the Colorado Department of Corrections if prison is imposed as the sentence.

The Presentence Confinement Credit statute, section 18-1.3-405, entitles a defendant to credit for “the entire period” of eligible presentence confinement.

While the statute does not specify the starting and ending days of confinement, any Presentence Confinement Credit calculation must include the first day of confinement and the last day of confinement.

A “Substantial Nexus” Must Exist Between Confinement and Charge for PSCC – The Reasoning of Schubert v. People

A statutory entitlement to presentence confinement credit arises only if that presentence confinement is served in connection with the charge or conduct for which a particular sentence is imposed the Schubert case – the key case in this area calls this “connection” a “substantial nexus” between the charge or conduct and the period of confinement for which credit is sought.

“In order to receive presentence confinement credit, an offender must have been actually confined and there must have been a substantial nexus between the confinement and the charge for which the sentence is ultimately imposed.”

The key is to establish to the Court’s satisfaction that the Presentence Confinement Credit sought, that the Defendant must have been confined for an offense before the imposition of the sentence for that same offense. The questions are:

Was the confinement actually caused by the charge or conduct for which the offender is to be sentenced?

Is the period of confinement attributable to the sentence imposed?”

If the Court finds, at sentencing, that the confinement for the charges and conduct are independent and distinct from the case for which a Defendant is being anti inflammatories sentenced then the case will fail the “substantial nexus.”

When there are consecutive sentences imposed the Court will credit the period of presentence confinement against one of the sentences. That makes certain that the defendant receives full credit against the total term of his or her imprisonment.

On the other hand if only one sentence is imposed at sentencing and the other concurrently filed counts or charges are dismissed then the entire period of presentence confinement is credited against the sentence that is imposed.

The focus then is giving presentence credit for the time spent incarcerated for one case even then that Defendant is confined in a jurisdiction other than where the Defendant is seeking presentence confinement credit. But if the Defendant is being held in the other jurisdiction on a separate and independent criminal proceeding the Court, he is not entitled to presentence credit on that case.

Finally, consider this scenario:

If the case on which the Defendant is being sentenced has been only recently filed, and a Defendant has been confined for a much longer period of time on an older case which relates to a separate criminal transaction and which is to be dismissed as part of a plea agreement, then the defendant is entitled to credit only for that period of confinement attributable to the case resulting in the sentence.

Colorado’s Pre-Sentence Felony And Misdemeanor Credit Laws

§ 18-1.3-405. Credit for Presentence Confinement

A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his or her sentence for the entire period of such confinement. At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled and shall include such finding in the mittimus.

The period of confinement shall be deducted from the sentence by the department of corrections. A person who is confined pending a parole revocation hearing is entitled to credit for the entire period of such confinement against any period of reincarceration imposed in the parole revocation proceeding.

The period of confinement shall be deducted from the period of reincarceration by the department of corrections. If a defendant is serving a sentence or is on parole for a previous offense when he or she commits a new offense and he or she continues to serve the sentence for the previous offense while charges on the new offense are pending, the credit given for presentence confinement under this section shall be granted against the sentence the defendant is currently serving for the previous offense and shall not be granted against the sentence for the new offense.



§ 18-1.3-509. Credit For Time Served On Misdemeanor Sentences

A person who is confined for a misdemeanor offense prior to the imposition of a sentence for the misdemeanor offense shall be entitled to credit against the term of his or her sentence for the entire period of the confinement.

At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled and shall include the finding in the mittimus.

The period of confinement shall be deducted from the offender’s sentence by the county jail.



Understanding Colorado’s Pre-Sentence Credit Laws – Credit For Time Served – 18-1.3-405

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H. Michael Steinberg Colorado Criminal Defense Lawyer - 30 years experienceABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

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You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Understanding Colorado’s Pre-Sentence Credit Laws – Credit For Time Served – 18-1.3-405.

Colorado Domestic Violence Lawyer