Background

• Kiniston pled guilty to theft in March 2007 and received a deferred judgment and sentence.
• At the plea, Kiniston had no prior felony convictions.
• After the plea, Kiniston committed two additional felonies; his deferred judgment and sentence was revoked and he was sentenced in September 2009.
• The trial court treated the two later felonies as 'prior' felonies under §18-1.3-201(2)(a.5) because they occurred before revocation.
• The People declined to waive application of the 'two prior felony' statute, so probation was precluded and Kiniston was sentenced to community corrections.
• Kiniston argues the term 'conviction' in §18-1.3-201(2)(a.5) refers to the guilty plea, not the revocation; the appellate court agrees and remands for resentencing.

Issues

Key Cases Cited

• People v. French, 165 P.3d 836 (Colo. App. 2007) (distinguishes between 'conviction' and 'judgment of conviction' to aid statutory interpretation)
• Hafelfinger v. District Court, 674 P.2d 375 (Colo. 1984) (acceptance of guilty plea constitutes a 'conviction' for bail purposes)
• People v. Allaire, 843 P.2d 38 (Colo. App. 1992) (guilty plea/deferred judgments can satisfy 'conviction' for weapons statute)
• Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981) (acceptance of guilty plea constitutes a conviction for double jeopardy purposes)
• People v. Baer, 973 P.2d 1225 (Colo. 1999) (statutory interpretation related to probation eligibility and convictions)
• Nance, 221 P.3d 428 (Colo. App. 2009) (probation context supports reading 'conviction' in context, not by judgment)
• Montes-Rodriguez v. People, 241 P.3d 924 (Colo. 2010) (statutory interpretation framework for downward read of terms)