16-11-308. Custody of department of corrections - procedure.

(1) When any person is sentenced to any correctional facility, that person shall be deemed to be in the custody of the executive director of the department of corrections or his designee.

(2) Any person sentenced pursuant to subsection (1) of this section shall initially be confined in the diagnostic center, as defined in section 17-40-101 (1.5), C.R.S., unless otherwise authorized by the executive director or the executive director's designee, to undergo evaluation and diagnosis to determine whether such person should be confined in a correctional facility or any other state institution, or whether such person should participate in a rehabilitation program as provided by law; except that no person subject to the provisions of section 16-11-301 (2) shall serve such person's sentence in any state correctional facility.

(3) When such evaluation and diagnosis is completed, a recommendation shall be made to the executive director of the department of corrections or his designee as to the place of confinement or rehabilitation program as provided by law which may result in the maximum rehabilitation of the offender.

(4) Copies of the evaluation and diagnosis and the recommendation shall be shown and explained to the offender upon request; except that the executive director of the department of corrections or his designee may withhold any information he deems to be detrimental to the rehabilitation of the offender.

(4.5) Repealed.

(5) The executive director of the department of corrections or his designee is further authorized to transfer said person to any state institution or treatment facility under the jurisdiction of or approved by the department of corrections if he deems it to be in the best interests of said person and the public. Insofar as is practicable, said transfer shall be consistent with the evaluation and diagnosis and recommendation.

Source: L. 74: Entire section added, p. 240, § 1, effective May 7. L. 77: (1), (3), (4), and (5) amended, p. 901, § 3, effective August 1. L. 78: (2) amended, p. 356, § 1, effective April 27. L. 79: Entire section amended, p. 681, § 10, effective July 1. L. 93: (2) amended, p. 53, § 15, effective July 1. L. 97: (2) amended, p. 27, § 3, effective March 20. L. 2000: (4.5) added, p. 1027, § 5, effective July 1. L. 2001: (4.5)(a)(I) amended, p. 957, § 5, effective July 1. L. 2002: IP(4.5)(a) amended, p. 1151, § 5, effective July 1; (4.5)(a)(I) amended, p. 1496, § 146, October 1. L. 2006: (4.5)(c) added by revision, pp. 1689, 1693, §§ 5, 17.

Editor's note: Subsection (4.5)(c) provided for the repeal of subsection (4.5), effective July 1, 2007. (See L. 2006, pp. 1689, 1693.)

Cross references: For the legislative declaration contained in the 2002 act amending subsection (4.5)(a)(I), see section 1 of chapter 318, Session Laws of Colorado 2002.

Court may not disregard legislative sentencing mandates. A court is not free to disregard the legislative mandate of §§ 16-11-201 and 16-11-301 and this section, even when it appears to dictate a sentence which the court considers inappropriate to a particular case. People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981).

Under this section and § 17-22.5-103, a defendant is entitled to credit against a sentence for time spent in the county jail after sentencing. People v. Mack, 681 P.2d 949 (Colo. 1984).

The court's statutory authority to sentence a defendant to the department of corrections does not expressly include the authority to dictate the conditions of confinement. The management, supervision, and control of department facilities are exclusively vested in its director. People v. Harris, 934 P.2d 882 (Colo. App. 1997).

Subsection (1) does not require a Colorado sentence that is imposed to run consecutively to an out-of-state sentence to begin to run on the date the Colorado sentence is imposed. It simply clarifies a defendant's custodial status after sentencing when the defendant remains in the county jail awaiting transfer to a correctional facility. People v. Mackey, 101 P.3d 1143 (Colo. App. 2004).

Applied in Ramos v. Lamm, 485 F. Supp. 122 (D. Colo. 1979); People v. Baker, 694 P.2d 377 (Colo. App. 1984).