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People v. Delfeld.

2021 COA 131. No. 19CA1546.  Illegal Sentence—Protection Order—CRS § 18-1-1001(1).

October 28, 2021

Defendant was charged in an earlier case with offenses arising from a domestic violence incident. Pursuant to CRS § 18-1-1001(1), the trial court entered a protection order prohibiting him from harassing, contacting, or communicating with the victim. The order was effective “until final disposition or further order of the Court.” The parties later reached a plea agreement under which defendant was sentenced to one year of imprisonment on two counts followed by two years of parole, and three years of probation to be served consecutively to the prison sentence but concurrently with his parole. Defendant served the sentence, and after serving additional prison time for parole violations, he was discharged from parole in May 2018, leaving him only on probation. Based on a complaint filed in November 2018, his probation was revoked and he was resentenced to 18 months in jail, which he served.

In this case, the prosecution charged defendant with violating the protection order and harassment arising from an altercation with the victim in September 2018 when he had completed his prison sentence and been discharged from parole but remained on probation. A jury convicted defendant, and the trial court found he was a habitual offender and sentenced him to three years in prison.

On appeal, defendant argued that the probation portion of his earlier sentence was illegal, so the sentence should have ended when he was discharged from parole in May 2018; and because the protection order terminated by operation of law in May 2018, before the offenses in this case, there was no basis after that point for the trial court to enforce the order or for the jury to find he had violated it. The parties agreed that defendant’s sentence to imprisonment and probation on different counts in the same case was illegal. Under the plain language of CRS § 18-1-1001(1), a mandatory protection order remains in effect “until final disposition of the action.” Here, the mandatory protection order wasn’t entered as part of the illegal sentence but immediately after defendant was charged. Thus, the illegality of the sentence does not call into question the validity of the protection order. Further, the two parts of defendant’s sentence are not severable such that one part can be considered illegal and the other legal. Under CRS § 18-1-1001(8)(b), defendant’s original sentence ended only when he was released from incarceration, discharged from parole, and discharged from probation. Thus, he was still serving his sentence and the protection order remained in effect at the time of the events leading to the charges in this case.

The judgment was affirmed.

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

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