¶ 34 To put it another way, "the concern" in a probation revocation hearing "is whether the alternatives to incarceration which have been made available to a defendant remain viable for him." People ex rel. Gallagher v. Dist. Court , 196 Colo. 499, 502, 591 P.2d 1015, 1017 (1978). "[A] probation revocation order operates not as a determination of guilt or innocence as to the question of whether the defendant violated the terms of his probation, but primarily as a reassessment of the correctness of the original sentence."
The purpose of a revocation hearing is not to determine defendant's culpability, but rather to decide "whether the alternatives to incarceration which have been made available to a defendant remain viable for him." People ex rel. Gallagher v. District Court, 591 P.2d 1015, 1017 (Colo. 1978) (en banc). Revocation will result when the continuation of probation conditions would be at odds with the need to protect the public and society's interest in rehabilitation — in other words, when the rehabilitative purposes of probation have failed and defendant is a threat to society.
The purpose of a probation revocation hearing is to consider the conduct of the defendant after an adjudication of guilt and to assess the correctness of the original sentence. People ex. rel. Gallagher v. District Court, 196 Colo. 499, 502, 591 P.2d 1015, 1017 (1978). Probation is a privilege, not a right, and if a probationer violates any probationary condition, her probation may be revoked.
And, of course, a court must first revoke probation before incarcerating a probationer: "If probation is revoked, the court may then impose any sentence or grant any probation ... which might originally have been imposed or granted." § 16-11-206(5) (emphases added); see People ex rel. Gallagher v. Dist. Court , 196 Colo. 499, 591 P.2d 1015, 1017 (1978) ("In a probation revocation hearing, the concern is whether the alternatives to incarceration which have been made available to a defendant remain viable."). To interpret section 18-1.3-702(3)(c) as requiring ability-to-pay findings only immediately before incarcerating a probationer for failure to pay would render the language prohibiting a court from revoking probation absent these findings meaningless.
Byrd v. People, 58 P.3d 50, 56 (Colo.2002). For example, a probationer has no right to a jury at a revocation proceeding, id. (citing § 16–11–206(1), C.R.S. (2002)); he cannot plead “not guilty by reason of insanity,” id. (citing People ex rel. Gallagher v. Dist. Court, 196 Colo. 499, 502, 591 P.2d 1015, 1016 (1978)); courts presiding over revocation hearings are not required to give Curtis advisements on the right to testify, id. (citing Allen, 973 P.2d at 622); the rules of evidence are relaxed, id. at 55 (citing Holdren v. People, 168 Colo. 474, 479, 452 P.2d 28, 30 (1969)); the exclusionary rule is inapplicable absent government activity that constitutes bad faith or egregious misconduct, id. at 56 (citing People v. Ressin, 620 P.2d 717, 720–21 (Colo.1980)); statements obtained in violation of Miranda may be nevertheless admissible, id. (citing State v. Mason, 56 Or.App. 164, 641 P.2d 1139, 1141 (1982)); and a probationer's invocation of the Fifth Amendment to decline to answer specific questions at a revocation proceeding may nevertheless be used against him, id. (citing Asherman v. Meachum, 957 F.2d 978, 981–83 (2d Cir.1992)).
As we have explained, "The purpose of a revocation hearing is not to determine defendant's culpability, but rather to decide `whether the alternatives to incarceration which have been made available to a defendant remain viable for him.'" State v. Lockwood, 160 Vt. 547, 552, 632 A.2d 655, 659 (1993) (quoting People ex rel. Gallagher v. District Court, 591 P.2d 1015, 1017 (Colo. 1978) (en banc)); see also Terry, 620 N.W.2d at 221 (noting that substantial procedural differences between revocation proceeding and criminal trial "`reflect substantial differences between the interests involved in parole revocation and those in a criminal prosecution'") (quoting State ex rel. Flowers v. DHSS, 260 N.W.2d 727, 732 (Wis. 1978)). The goal of a revocation hearing is to not to decide guilt or innocence, but to determine whether the defendant remains a good risk for probation.
See id. at 1390-1391 n. 17.Trumbly v. State, 515 P.2d 707 (Alaska 1973); State v. O'Meal, 116 Ariz. 307, 569 P.2d 249 (1977); People v. Breaux, 101 Cal.App.3d 468, 161 Cal.Rptr. 653 (1980) (collecting cases); People ex rel. Gallagher v. District Court, 196 Colo. 499, 591 P.2d 1015 (1978); People v. Prusak, 200 Ill. App.3d 146, 146 Ill.Dec. 733, 558 N.E.2d 696 (1990); State v. Qualls, 50 Ohio App.3d 56, 552 N.E.2d 957 (1988); State v. Johnson, 9 Wn. App. 766, 514 P.2d 1073 (1973); State ex rel. Lyons v. Department of Health Social Services, 105 Wis.2d 146, 312 N.W.2d 868 (1981).Knight v. Estelle, 501 F.2d 963, 965 (5th Cir. 1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2399, 44 L.Ed.2d 668 (1975) (insanity not a defense to charge of parole violation).
However, the purpose of a revocation hearing is not to determine "whether the defendant should be held responsible for the acts with which he is charged" but is instead to determine "whether the alternatives to incarceration which have been made available to a defendant remain viable." People ex rel Gallagher v. Dist. Court of Eighteenth Judicial Dist., 591 P.2d 1015, 1017 (Colo. 1978); see also State v. O'Meal, 569 P.2d 249, 251 (Ariz. 1977) (stating that the concern of trial court at revocation hearing is whether law has been obeyed, not whether it has been culpably broken); People v. Breaux, 161 Cal. Rptr. 653, 656 (Cal. Ct. App. 1980) (stating that the purpose of revocation hearing is not to determine legal responsibility but to protect the public and further rehabilitation). To that extent, a trial court may revoke an alternative sentence based upon its "own finding of new criminal conduct" even if the defendant is later acquitted of the charges or the charges are dismissed or overturned. United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991) (quotingTaylor v. United States Parole Comm'n, 734 F.2d 1152, 1155 (6th Cir. 1984)).
. . . [A] probation revocation order operates not as a determination of guilt or innocence as to the question of whether the defendant violated the terms of his probation, but primarily as a reassessment of the correctness of the original sentence." People ex rel. Gallagher v. District Court, 196 Colo. 499, 502, 591 P.2d 1015, 1017 (1978). Thus, once a trial court has revoked a defendant's probation, it is authorized to impose any sentence that could have been imposed originally for the underlying crime.
Rather, their purpose is to ascertain an appropriate sentence for an offense of which defendant has already been convicted and for which probation was granted. See People ex rel. Gallagher v. District Court, 196 Colo. 499, 502, 591 P.2d 1015, 1017 (1978) ("[P]robation revocation . . . operates not as a determination of guilt or innocence as to the question of whether the defendant violated the terms of his probation, but primarily as a reassessment of the correctness of the original sentence."). Thus, defendant's conviction in Boulder County properly served as the basis to revoke defendant's probation and reassess his sentence on the earlier, separate conviction in Larimer County.