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LADYLAWYER
LADYLAWYER, Lawyer
Category: Criminal Law
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Experience:  Criminal Defense Attorney
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I need a motion to request for pre-confinement time? How do

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I need a motion to request for pre-confinement time? How do I go about doing that. Is it up to the judges discretion? Kim / Denver, Colorado

LADYLAWYER : Hi Kim!
LADYLAWYER : One would need to file a "Motion to Request Credit for Pre-sentence Confinement." You would file this with the court and yes, ultimately it would be up to the judge, but the statutes and case law guide the judge's decision.
LADYLAWYER : I am going to send you a link for a sample motion, but the motion is from Iowa; however, I will provide you with the CO case law for the motion here. So using the Iowa motion and CO case law, you should be able to prepare your own motion.
LADYLAWYER : Section 18-1.3-405, C.R.S.2004, provides that “[a] person who is confined for an offense prior to the imposition of sentence for such offense is entitled to credit against the term of his or her sentence for the entire period of such confinement.” To receive presentence confinement credit, an offender must have been actually confined, and there must have been a substantial nexus between the confinement and the charge for which the sentence is ultimately imposed.   Beecroft v. People, 874 P.2d 1041 (Colo.1994). Colorado appellate courts have held that time spent in jail, in a DOC facility, or as a resident in a community corrections facility constitutes confinement under § 18-1.3-405, even if it was a condition of probation or was part of a work release program, because “these facilities substantially limit an individual's liberty.”  Beecroft v. People, supra, 874 P.2d at 1045;  see People v. Hoecher, 822 P.2d 8 (Colo.1991);  People v. Widhalm, 991 P.2d 291 (Colo.App.1999).
JACUSTOMER-wrqozkkw- :

Thank you so much

JACUSTOMER-wrqozkkw- :

Yes cause my boyfriend got a 60 day sentence and has been in jail since February 21st. When he saw the judge he asked for it but the judge says he ask his sentencing judge

LADYLAWYER : You are most welcome! I am pulling up the Iowa motion. It's on a site that is sometimes hard to access so it's a little slow. :)
JACUSTOMER-wrqozkkw- :

So he lost like 44 days and he probably could've been out already

JACUSTOMER-wrqozkkw- :

I start filing using a blank motion

LADYLAWYER : oh okay, then he should definitely qualify for time served under CO law
LADYLAWYER : sorry that's happening to you guys
JACUSTOMER-wrqozkkw- :

But he was in a different county on a different case

JACUSTOMER-wrqozkkw- :

will that effect that

LADYLAWYER : Yes, you can use one of O's standard motion forms.
LADYLAWYER : *CO's
LADYLAWYER : Yes, that can change the outcome.
JACUSTOMER-wrqozkkw- :

He had multiple warrant and when he was arrested he was arrested for the case that he didn't get credit for

LADYLAWYER : You need to go ahead and file the motion anyway.
LADYLAWYER : But you do need to be aware that the judge could deny the motion based on the following case law: "To receive presentence confinement credit, an offender must have been actually confined, and there must have been a substantial nexus between the confinement and the charge for which the sentence is ultimately imposed.   Beecroft v. People, 874 P.2d 1041 (Colo.1994)."
LADYLAWYER : Here's the sample Iowa motion: http://www.docstoc.com/docs/101711032/Motion-For-Credit-For-Time-Served---Iowa-Public-Defender
LADYLAWYER : You may need to register for the site to print it out (it's free).
LADYLAWYER : Still with me?
JACUSTOMER-wrqozkkw- :

hello

JACUSTOMER-wrqozkkw- :

sorry

LADYLAWYER : No problem :)
JACUSTOMER-wrqozkkw- :

so do you think he will qualify under that statute

LADYLAWYER : So basically, to recap, you need to file the motion on behalf of your bf. since you are not an attorney, he will actually have to sign the motion and file it.
JACUSTOMER-wrqozkkw- :

he was confined. He was waiting for another county to get him and they didn't know until I filed a writ for him

LADYLAWYER : Not if his time served was in relation to a different issue than what he is being sentenced for; however, if he was picked up on multiple warrants and one of those is what he is being sentenced for now, then yes, he will qualify.
LADYLAWYER : Does that make sense?
JACUSTOMER-wrqozkkw- :

Ok great than he does definitely qualify as he was picked up on the case I need credit for his time served

JACUSTOMER-wrqozkkw- :

because its says Iowa on the form...should I change that or what should I do

LADYLAWYER : Do you have a standard CO motion form?
JACUSTOMER-wrqozkkw- :

no I don't

JACUSTOMER-wrqozkkw- :

I can't find the form

JACUSTOMER-wrqozkkw- :

I have a basic General motion

JACUSTOMER-wrqozkkw- :

form,

LADYLAWYER : Okay, you can use that. You just need to change it more towards the criminal court rather than civil court.
LADYLAWYER : So it would be State of CO vs. your bf, Defendant (rather than Plaintiff and Defendant).
LADYLAWYER : It's probably just best to type it up yourself.
JACUSTOMER-wrqozkkw- :


Thank you so much for your help

JACUSTOMER-wrqozkkw- :

You helped me so much

JACUSTOMER-wrqozkkw- :

Ive been researching this whole thing

JACUSTOMER-wrqozkkw- :

Thanks again

LADYLAWYER : I am so glad to help!
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