You’ve Heard the Term, “Three Strikes and You’re Out,” But What Does That Really Mean?:
A Deep Dive into Colorado’s Habitual Criminal Statutes
The Colorado Habitual Criminal Statute:
C.R.S 18-1.3-801 provides a framework for increasing the sentencing limits on repeat offenders in order to deter what the law considers to be habitual crime. Commonly known as the “three strikes law”, the statute is broken into four sections classifying the magnitude of the punishment congruent with the severity of the previous crimes. These four sections of the Statue are broken into C.R.S 18-1.3-801(1), C.R.S 18-1.3-801(1.5) and C.R.S 18-1.3-801(2) and C.R.S. 18-1.3.801(2.5).
Any conviction under these four sections of the statue will have an individual adjudged a habitual criminal and sentenced respective to each section outlined below:
Three Big Strikes – C.R.S. 18-1.3-801(1)
“(1)(a) A person shall be adjudged an habitual criminal and shall be punished by a term in the department of corrections of life imprisonment if the person: (I) Is convicted of: (A) Any class 1 or 2 felony or level 1 drug felony; or (B) Any class 3 felony that is a crime of violence, as defined in section 18-1.3-406(2); and (II) Has been twice convicted previously for any of the offenses described in subparagraph (I) of this paragraph (a).”
If convicted of any combination of the following charges twice, given that those charges arise from distinctly separate criminal episodes:
- Class 1-2 Felony
- Level 1 Drug Felony
And subsequently convicted of any of the above crimes or any class 3 felony that is a crime of violence, will be adjudged a habitual criminal and sentenced to life in prison without parole for at least forty years.
Three Strikes in 10 years – C.R.S 18-1.3-801(1.5)
“1.5) Except as otherwise provided in subsection (5) of this section, every person convicted in this state of any class 1, 2, 3, 4, or 5 felony or level 1, 2, or 3 drug felony who, within ten years of the date of the commission of the said offense, has been twice previously convicted upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony shall be adjudged an habitual criminal”
If convicted of any combination of the following two times within 10 years, given that those charges arise from distinctly separate criminal episodes:
- Class 1-6 Felony
- Level 1-4 Drug Felony
Who is then subsequently convicted of any of the following:
- Class 1-5 Felony
- Level 1-3 Drug Felony
Will be, upon their third conviction, sentenced to three times the maximum sentence for their third felony, or forty-eight years in prison if their third charge is a level 1 drug offense.
Four Strikes – C.R.S 18-1.3-801(2)
“Except as otherwise provided in paragraph (b) of this subsection (2) and in subsection (5) of this section, every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony, shall be adjudged an habitual criminal”
If convicted of any of the following combination four times, given that each conviction arises out of a distinctly separate criminal episode:
- Class 1-6 Felony
- Class 1-4 Drug Felony
Will be sentenced to four times the maximum sentence of their fourth felony, if their fourth offense is a level one drug felony offense, they are sentenced to sixty-four years in prison.
The Fifth Strike C.R.S 18-1.3-801(2.5)
“Any person who is convicted and sentenced pursuant to subsection (2) of this section, or section 16-13-101(2), C.R.S., as it existed prior to October 1, 2002, who is thereafter convicted of a felony which is a crime of violence pursuant to section 18-1.3-406, shall be adjudged an habitual criminal and shall be punished by a term in the department of corrections of life imprisonment.”
If convicted as a habitual criminal under section 2, or the Four Strikes section of the statue, and subsequently convicted for a felony considered a crime of violence pursuant to C.R.S. 18-1.3-406(2) you will be sentenced to life in prison without parole for 40 years.
Crimes of violence are crimes conspired to be committed or committed using or threatening use of a deadly weapon or causing serious bodily injury or death to another person if that person was not a participant in the crime. Also included under this classification are any sexual offense crimes that cause the defendant bodily injury in which force was used or threatened against the defendant.
Fighting Habitual Criminal Sentencing
Preventing the excessive sentencing brought about by this statute is rooted in mitigation of previous charges. Subsections of the statute categorizations provide various exceptions to what can and cannot be used in a habitual criminal adjudication. The ramifications of these exceptions are that, although some previous convictions resulted in felonies, they are exempt from being considered “strikes”.
Felonious drug violations are a component of every sentencing section of the statue. However, C.R.S. 18-1.3-801(5) mandates that a previous drug felony conviction cannot be counted as a previous conviction if the prior offense would not be considered a felony at the time of the new charge. With the rapidly changing drug sentencing laws in Colorado, it’s possible that many prior felony drug convictions would not be considered so today.
A prior conviction for attempted escape or escape cannot be used as a “strike” unless it us a charge of attempting to escape a correctional facility pursuant to C.R.S 18-1.3-801(5).
First and second-degree burglary, while potentially class 1 felonies, cannot be used to get a habitual criminal conviction under The Big Three Strikes C.R.S 18-1.3-801(1)(f). An individual with prior first- and second-degree felony convictions could only be charged under subsequent sections, with potentially significantly lower consequences.
Habitual Criminal is a serious charge with dire consequences. It is imperative that you understand fully your previous convictions and are best represented on your current charges. Reach out to the qualified and experienced team at Krizman Law for the relentless criminal defense you need to avoid burdensome lengthy prison sentencing and ensure that your rights remain protected in your case.
Mr. Krizman is a criminal defense attorney in Denver, Colorado. He specializes in providing relentless defense for domestic violence, DUI, and drug crimes. He is a former public defender who has also worked for a district attorney and is licensed in the State of Colorado, and the United States Federal Court, District of Colorado. Mr. Krizman is a member of the Colorado Criminal Defense Bar, Colorado Bar Association, Denver Bar Association, and Arapahoe County Bar Association. A Colorado native, he has a law degree from the University of Denver Sturm College of Law, and a bachelor’s degree in Government and World Affairs from the University of Tampa. Contact him today at 720.819.7317.