Certiorari to the Colorado Court of Appeals, Court
of Appeals Case No. 08CA2071
Petitioner: John W. Suthers, Attorney General, Corelle M. Spettigue, Assistant
Attorney General, Denver, Colorado.
Attorneys for Respondent: Douglas K. Wilson, Colorado State Public Defender, Dayna Vise, Deputy Public Defender, Sean Christopher Thomson, Deputy Public Defender, Denver, Colorado.
¶ 1 In this opinion, we review People v. Smith, 312 P.3d 1173 (Colo.App.2010), a court of appeals decision analyzing the scope of a trial court's discretion when awarding credit for presentence confinement against a jail sentence imposed as a condition of probation. In Smith, the court of appeals held that the trial court abused its discretion when it awarded Smith, a felony offender, only a portion of his presentence confinement
credit (" PSCC" )  against a jail term imposed as a condition of probation. 312 P.3d at 1180-81. The court of appeals concluded that while the trial court was not required to award PSCC against a jail term imposed as a condition of probation, if the trial court chose to award PSCC, it had to award PSCC equal to the full amount of time served. Id. at 1181.
¶ 2 We disagree. We hold that the statutory provision governing PSCC for a felony offense, section 18-1.3-405, C.R.S. (2013), does not apply to probation, and therefore does not apply to the jail component of a probation sentence. Because a trial court is not constrained by section 18-1.3-405 when sentencing an offender to probation with a jail component, whether to credit an offender for presentence confinement— in full, in part, or not at all— is within the trial court's discretion. Accordingly, we reverse and we remand for proceedings consistent with this opinion.
I. Facts and Procedural History
¶ 3 Spencer Smith broke into the victim's apartment carrying a concealed shotgun. He claimed that he went to the apartment to collect on a debt. A jury found Smith guilty of first-degree criminal trespass. He was sentenced to three years of intensive supervised probation. As a condition of his probation, the trial court ordered Smith to serve 30 days in the county jail to impress upon Smith the severity of his crime. The trial court noted that the defendant had already served county jail time at the time of sentencing but determined that additional jail time was warranted due to the use of a weapon:
The Court does feel there's a need for a punitive sanction, and the Court is going to sentence the defendant to 30 days at the Larimer County Detention Center.
I do note the defendant previously served 89 days, but the Court feels it's appropriate that the defendant serve 30 days straight time at the Larimer County Detention Center. The Court ... simply wants to make sure the defendant understands that the use of weapons in situations like this just cannot be tolerated.
Defense counsel objected, stating: " [The] maximum that the Court can impose as a condition of probation is 90 days." The trial court overruled the objection, stating: " I'm not giving the defendant credit for all of the 89 days that he previously served. I'll give him credit for 60 days and impose the balance of 90 days then."
¶ 4 Smith appealed the denial of 29 days of PSCC. He argued that the felony PSCC statute, section 18-1.3-405, mandates that a court apply the full 89 days of credit against a jail term imposed as a condition of probation. In the alternative, he argued that the trial court's interpretation of the PSCC statute violated his equal protection rights.
¶ 5 The court of appeals reversed the trial court, concluding that while the trial court had discretion not to award any PSCC to a jail sentence imposed as a condition of felony probation, if the trial court decided to award PSCC, it did not have discretion to award less than the full amount of PSCC. Smith, 312 P.3d at 1180-81. In short, the court of appeals held that a trial court sentencing a felony offender to probation only has the discretion either to apply full PSCC or to apply no PSCC to a jail sentence imposed as a condition of probation. Id.
¶ 6 We granted certiorari to address the question of whether an offender is entitled to have the jail component of his probation sentence reduced by ...