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People v. Gregory.

2020 COA 162. No. 20CA0856.  Unauthorized Removal of an Electronic Monitoring Device while on Parole—Felony Escape—Prison Population Reduction and Management Act—Unauthorized Absence—Retroactive Application.

November 12, 2020

Defendant allegedly removed his electronic monitoring device without authorization while on intensive supervision program (ISP) parole. He was charged with felony escape and habitual criminal sentencing enhancers. While his felony escape charge was pending, the 2020 Prison Population Reduction and Management Act (the Act) became law. Based on the Act, defendant moved to dismiss the felony escape charge and to remand the case to county court for further proceedings on a misdemeanor unauthorized absence charge. The district court dismissed the felony escape and habitual criminal charges and remanded the case to county court for further proceedings.

On appeal, the prosecution argued that the applicable provision of the Act, which created the crime of “unauthorized absence,” does not apply retroactively. Under the Act, the unauthorized removal of an electronic monitoring device while on ISP parole no longer constitutes a felony escape but is a new crime of “unauthorized absence,” a class three misdemeanor.

Amendatory legislation mitigating the penalties for crimes applies both before and after a defendant’s conviction and sentencing, so long as the defendant’s conviction has not become final, unless the amendment contains language indicating it applies only prospectively. Under People v. Stellabotte, 2018 CO 66, for the Act to apply retroactively (1) the amendment must be ameliorative, (2) the amendment must not state that it only applies prospectively, and (3) the defendant’s conviction must not yet be final. Here, the amendment was ameliorative because it mitigates the penalty for defendant’s alleged conduct, the Act does not state that it applies only prospectively, and defendant’s conviction was not yet final when it was enacted.

The order was affirmed.

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

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