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People v. Argott.

2021 COA 42. No. 19CA1117.  Criminal Law—Sentencing—Probation—“Wobbler” Statute—Converting Felony to Misdemeanor.

April 1, 2021

Defendant pleaded guilty to a drug felony. The plea agreement included a stipulation that at the sentencing hearing the court would place defendant on probation without imposing a jail sentence. At the sentencing hearing, the court put defendant on supervised probation for one year; ordered him to complete a substance abuse evaluation and comply with its recommendations; and informed him that under CRS § 18-1.3-103.5(2)(a), a “wobbler” statute, the court would reduce his felony conviction to a misdemeanor if he successfully completed his probation.

Defendant’s probation was later revoked, and the court resentenced him to probation with 90 days in jail with work release. Defendant’s probation was revoked a second time, and the court resentenced him to unsupervised probation on the condition that he serve 130 days in a community treatment center with work release. After defendant successfully completed the 130 days in a community treatment center, he asked the court to reduce his sentence to a misdemeanor, which the court denied.

On appeal, defendant contended that the court erred when it decided that he was not eligible for relief under CRS § 18-1.3-103.5(2)(a) because it had previously revoked his probation. Subsection 103.5(2)(a) requires a court to reduce a felony drug conviction to a class 1 misdemeanor drug conviction if it finds that the defendant has successfully completed any community-based probation sentence. The statute does not exclude defendants who have had courts revoke their probation and whom courts have then resentenced to probation. Accordingly, the court erred. However, defendant is not automatically entitled to an order reducing his felony conviction to a class 1 misdemeanor; the court must decide whether he has “successfully completed” his probation.

The order was reversed and the case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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