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People v. Noel12/1/2005
ORDER AFFIRMED
Vogt and Román, JJ., concur
Defendant, Susan M. Noel, appeals the trial court order denying her motion for refund of a probation supervision fee. We affirm.
A jury found defendant guilty of first degree criminal trespass, a class five felony, and the trial court sentenced her to eighteen months probation. The court also ordered, as a condition of her probation, that defendant pay a $630 supervision fee. See § 18-1.3-204(2)(a)(V), C.R.S. 2005 (court may, as a condition of probation, require that the defendant pay the costs of such supervision).
After her conviction was affirmed on direct appeal, People v. Noel, (Colo. App. No. 01CA0314, Feb. 21, 2002) (not published pursuant to C.A.R. 35(f)), defendant filed a Crim. P. 35(c) motion in the trial court, claiming that she had not voluntarily waived her right to testify at trial. The court agreed with defendant and vacated her conviction, noting on the order that defendant had already served her sentence.
Defendant then filed a motion seeking a refund of the $630 probation supervision fee she had paid prior to completing her sentence. Defendant argued that, because her conviction had been vacated, the probation supervision fee should be refunded "as a matter of fairness." Following a hearing on the motion, the court concluded:
hile I certainly understand the defendant's argument . . . the [prosecution's] quantum meruit argument makes a lot of sense to me. This was not some sort of a fine or a punitive sanction hat was imposed. This was simply a mandatory court cost, which is assessed to offset the cost of supervising a person who's . . . convicted of crimes. Obviously if a jail sentence had been served, we could not unring the bell, as [defense counsel] has argued. But I also think it sets a dangerous precedent to allow people to seek a refund for services actually provided because a subsequent event changes that situation. If [defendant] had been fined $5,000 as a punitive sanction, then I guess I would agree that that fine, perhaps, would be appropriate to refund. But I think supervision fees are simply another way of transferring State-incurred costs to the person/persons responsible for . . . those costs. And it seems appropriate that [defendant] paid those even though her conviction has now been overturned. So I'm going to deny the defendant's motion for refund of supervision fees.
This appeal followed.
Defendant contends that the trial court erred in denying her motion because to deprive her of a refund is to deprive her of property without due process. She argues that, " ust as the probation supervision fee was imposed incident to the trial court's judgment of conviction, the probation supervision fee must be refunded . . . incident to vacation of the judgment." We disagree. Probation is a privilege, not a right. People v. Howell, 64 P.3d 894 (Colo. App. 2002). And, contrary to defendant's assertion, its primary purpose is to rehabilitate, not to punish. People v. Flenniken, 749 P.2d 395 (Colo. 1988); People v. Howell, supra; People v. Martinez, 844 P.2d 1203 (Colo. App. 1992). In concluding that a sanction that is primarily remedial does not violate principles of double jeopardy, the court in Howell, supra, held that assessed costs of probation were not part of the sentence and did not constitute punishment.
Probation is a sentencing alternative that a defendant applies for and the trial court either grants or denies. A defendant who objects to the terms of probation is free to reject the imposition of probation. People v. Martinez, supra.
In Toland v. Strohl, 147 Colo. 577, 364 P.2d 588 (1961), the court orde
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