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- posted: Jun. 20, 2025
- Felonies
Colorado's habitual offender statute — also known as the "three felony rule" — allows for imposing enhanced sentences on defendants with prior felony convictions. The law is aimed at deterring persistent criminal behavior and incapacitating career criminals. Formerly, the sentencing judge would decide the issue of whether a defendant was a habitual offender. But under a law that took effect June 2, 2025, that finding now must be made by a jury in a separate proceeding.
The new measure, SB 25-189, amends the habitual offender statute, Colorado Revised Statutes Section 18-1.3-801, to require that a separate proceeding be held after trial at which a jury is to determine —
whether the defendant is a habitual criminal
whether the defendant has been previously convicted
whether the convictions were separately brought and tried
whether the convictions arose out of separate and distinct criminal episodes
The prosecuting attorney has the burden of proving these elements beyond a reasonable doubt. The Colorado Rules of Evidence and Colorado Rules of Criminal Procedure, including the latter’s discovery provisions, fully apply to the habitual proceeding.
The habitual proceeding generally must be conducted before the same jury that was impaneled to try the substantive offense. However, when necessary and constitutionally permissible, a new jury may be impaneled, in which case the court shall hold the habitual proceeding as soon as practicable.
The new statute provides defendants with prior felony convictions a meaningful forum for effectively raising defenses against enforcement of the habitual offender statute. This could prove to be invaluable, given that the statute imposes these harsh penalties:
A person convicted of a third serious felony (such as a class 1 or 2 felony, level 1 drug felony or class 3 felony involving violence) is sentenced to life imprisonment.
For an individual convicted of a third felony of any class within 10 years, the sentence is three times the maximum presumptive range for that felony.
A person convicted of a fourth felony is sentenced to four times the maximum presumptive range for that felony.
The statute also applies to prior out-of-state convictions of crimes that correspond to felonies under Colorado law.
In addition to challenging validity of prior convictions in a habitual proceeding, an experienced Colorado criminal defense attorney can demonstrate mitigating circumstances or rehabilitation efforts, such as a defendant's changed lifestyle, employment, family responsibilities or health issues, to argue for a lesser sentence. In some cases, a skilled attorney can negotiate with prosecutors to potentially reduce the charges to avoid automatic sentencing enhancements.
If you have been arrested or charged with a crime in Colorado, the Polansky Law Firm in Boulder can promptly take all necessary steps to protect your rights. Call us at 303-415-2583 or contact us online.
