Colorado’s second-highest court on Thursday agreed a La Plata County judge imposed an illegal sentence, but remained divided about whether it should repair the problem itself.

In the underlying case, Jacob Daniel John Jost pleaded guilty in 2023 to criminal mischief and received a sentence of two years’ probation. Later that year, he violated his probation, prompting a judge to restart the sentence in October. However, Jost violated his probation a second time that year, leading to his arrest again in December.

The prosecution asked District Court Judge A. Nathaniel Baca for a straightforward consequence — give Jost 18 months in prison. The defense, in contrast, presented three options:

• Restart Jost’s probationary sentence

• Sentence Jost to prison

• End Jost’s probation and sentence him to jail in exchange

Baca chose the third option. He did not believe prison would help Jost address his homelessness and drug addition, and observed Jost was receiving some support for his issues through the jail. Baca wound up imposing a 150-day jail sentence and gave Jost credit for the 133 days he had already been incarcerated, for a total of 17 days in jail.

The prosecution undertook a rare appeal to the Court of Appeals, contending Baca’s new sentence was illegal.

Sean P. Murray, the appointed district attorney for La Plata County, argued the conditions and stipulations of Colorado’s sentencing laws did not allow Baca to do what he did. If he wanted to sentence Jost to incarceration, Jost needed to go to prison, not jail. Moreover, the sentence would need to be a term of 12 to 18 months.

If Baca wanted to impose jail time as a condition of Jost’s probation, he could have done so, Murray added. But Baca would have been limited to 90 days, not 150.

“While the court could have been more artful in its wording, a review of the sentencing transcript makes plain the court’s intent,” responded public defender John P. Finnegan, who argued Baca intended to restart Jost’s probation and simply add a condition of 17 days in jail, as the law allowed.

A three-judge panel for the Court of Appeals agreed Baca clearly was not intending to give Jost a third chance at probation. Therefore, the majority concluded, Baca should have sentenced Jost to the appropriate length of time in the Colorado Department of Corrections.

“So, a 150-day sentence (instead of a sentence between one year and eighteen months) in jail (instead of the DOC) on Jost’s class 6 felony criminal mischief conviction was not authorized by law,” wrote Judge Jaclyn Casey Brown for herself and Judge Robert D. Hawthorne in the Dec. 19 opinion.

The panel returned the case to Baca to impose a proper sentence.

Judge Craig R. Welling dissented, believing he could see a path to legally accomplish what Baca was trying to do.

“I understand why the majority declines to go this route. After all, doing so requires not just one but three fixes that aren’t included in the sentence the district court actually imposed. At some point this court’s role in repairing a legally flawed sentence must yield,” he wrote. “I just happen to be persuaded that the sentence imposed in this case is just on the salvageable side of that line.”

Welling elaborated that he would have directed Baca to restart Jost’s probation for 17 days, incarcerate Jost in the county jail for those 17 days and decline to give him any credit for prior incarceration. With those tweaks, Baca’s goal would be accomplished, Welling added.

The case is People v. Jost.