Sec. 53a-40. Persistent offenders: Definitions; defense; authorized sentences; procedure.
Sec. 53a-40. Persistent offenders: Definitions; defense; authorized sentences;
procedure. (a) A persistent dangerous felony offender is a person who:
(1) (A) Stands convicted of manslaughter, arson, kidnapping, robbery in the first
or second degree, assault in the first degree, home invasion, burglary in the first degree
or burglary in the second degree with a firearm, and (B) has been, prior to the commission
of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal
correctional institution, for any of the following crimes: (i) The crimes enumerated in
subparagraph (A) of this subdivision or an attempt to commit any of said crimes; or (ii)
murder, sexual assault in the first or third degree, aggravated sexual assault in the first
degree or sexual assault in the third degree with a firearm, or an attempt to commit any
of said crimes; or (iii) prior to October 1, 1975, any of the crimes enumerated in section
53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or
prior to October 1, 1971, in this state, assault with intent to kill under section 54-117,
or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive,
53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes
in this state, or an attempt to commit any of said crimes; or (iv) in any other state, any
crimes the essential elements of which are substantially the same as any of the crimes
enumerated in subparagraph (A) of this subdivision or this subparagraph; or
(2) (A) Stands convicted of sexual assault in the first or third degree, aggravated
sexual assault in the first degree or sexual assault in the third degree with a firearm, and
(B) has been, prior to the commission of the present crime, convicted of and imprisoned
under a sentence to a term of imprisonment of more than one year or of death, in this
state or in any other state or in a federal correctional institution, for any of the following
crimes: (i) Murder, manslaughter, arson, kidnapping, robbery in the first or second degree, assault in the first degree, home invasion, burglary in the first degree or burglary
in the second degree with a firearm, or an attempt to commit any of said crimes; or (ii)
prior to October 1, 1971, in this state, assault with intent to kill under section 54-117,
or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive,
53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83 and 53-86 of the general
statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or
an attempt to commit any of said crimes; or (iii) in any other state, any crimes the
essential elements of which are substantially the same as any of the crimes enumerated
in subparagraph (A) of this subdivision or this subparagraph.
(b) A persistent dangerous sexual offender is a person who (1) stands convicted of
sexual assault in the first or third degree, aggravated sexual assault in the first degree
or sexual assault in the third degree with a firearm, and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of
imprisonment of more than one year, in this state or in any other state or in a federal
correctional institution, for (A) any of the crimes enumerated in subdivision (1) of this
subsection, or (B) prior to October 1, 1975, any of the crimes enumerated in section
53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or
prior to October 1, 1971, in this state, any of the crimes enumerated in section 53-238
or 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor
statutes in this state, or an attempt to commit any of said crimes, or (C) in any other
state, any crimes the essential elements of which are substantially the same as any of
the crimes enumerated in subdivision (1) of this subsection or this subdivision.
(c) A persistent serious felony offender is a person who (1) stands convicted of a
felony, and (2) has been, prior to the commission of the present felony, convicted of
and imprisoned under an imposed term of more than one year or of death, in this state
or in any other state or in a federal correctional institution, for a crime. This subsection
shall not apply where the present conviction is for a crime enumerated in subdivision
(1) of subsection (a) of this section and the prior conviction was for a crime other than
those enumerated in subsection (a) of this section.
(d) A persistent serious sexual offender is a person, other than a person who qualifies
as a persistent dangerous sexual offender under subsection (b) of this section, who qualifies as a persistent serious felony offender under subsection (c) of this section and the
felony of which such person presently stands convicted is a violation of subdivision (2)
of subsection (a) of section 53-21, or section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b and the prior conviction is for a violation of section 53-21 of the general
statutes, revised to January 1, 1995, involving sexual contact, committed prior to October
1, 1995, a violation of subdivision (2) of section 53-21 of the general statutes, committed
on or after October 1, 1995, and prior to October 1, 2000, a violation of subdivision (2)
of subsection (a) of section 53-21 or a violation of section 53a-70, 53a-70a, 53a-70b,
53a-71, 53a-72a or 53a-72b.
(e) A persistent larceny offender is a person who (1) stands convicted of larceny in
the third degree in violation of the provisions of section 53a-124 in effect prior to October
1, 1982, or larceny in the fourth, fifth or sixth degree, and (2) has been, at separate times
prior to the commission of the present larceny, twice convicted of the crime of larceny.
(f) A persistent felony offender is a person who (1) stands convicted of a felony
other than a class D felony, and (2) has been, at separate times prior to the commission
of the present felony, twice convicted of a felony other than a class D felony.
(g) It shall be an affirmative defense to the charge of being a persistent offender
under this section that (1) as to any prior conviction on which the state is relying the
defendant was pardoned on the ground of innocence, and (2) without such conviction,
the defendant was not two or more times convicted and imprisoned as required by this
section.
(h) When any person has been found to be a persistent dangerous felony offender,
the court, in lieu of imposing the sentence of imprisonment authorized by the general
statutes for the crime of which such person presently stands convicted, shall (1) sentence
such person to a term of imprisonment that is not (A) less than twice the minimum term
of imprisonment authorized for such crime or (B) more than twice the maximum term
of imprisonment authorized for such crime or forty years, whichever is greater, provided,
if a mandatory minimum term of imprisonment is authorized for such crime, such sentence shall include a mandatory minimum term of imprisonment that is twice such
authorized mandatory minimum term of imprisonment, and (2) if such person has, at
separate times prior to the commission of the present crime, been twice convicted of
and imprisoned for any of the crimes enumerated in subsection (a) of this section, sentence such person to a term of imprisonment that is not less than three times the minimum
term of imprisonment authorized for such crime or more than life, provided, if a mandatory minimum term of imprisonment is authorized for such crime, such sentence shall
include a mandatory minimum term of imprisonment that is three times such authorized
mandatory minimum term of imprisonment.
(i) When any person has been found to be a persistent dangerous sexual offender,
the court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35a for the crime of which such person presently stands convicted, shall sentence such
person to a term of imprisonment and a period of special parole pursuant to subsection
(b) of section 53a-28 which together constitute a sentence of imprisonment for life, as
defined in section 53a-35b.
(j) When any person has been found to be a persistent serious felony offender, the
court in lieu of imposing the sentence of imprisonment authorized by section 53a-35
for the crime of which such person presently stands convicted, or authorized by section
53a-35a if the crime of which such person presently stands convicted was committed
on or after July 1, 1981, may impose the sentence of imprisonment authorized by said
section for the next more serious degree of felony.
(k) When any person has been found to be a persistent serious sexual offender, the
court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35a
for the crime of which such person presently stands convicted, may impose a sentence
of imprisonment and a period of special parole pursuant to subsection (b) of section
53a-28 which together constitute the maximum sentence specified by section 53a-35a
for the next more serious degree of felony.
(l) When any person has been found to be a persistent larceny offender, the court,
in lieu of imposing the sentence authorized by section 53a-36 for the crime of which
such person presently stands convicted, may impose the sentence of imprisonment for
a class D felony authorized by section 53a-35, if the crime of which such person presently
stands convicted was committed prior to July 1, 1981, or authorized by section 53a-35a, if the crime of which such person presently stands convicted was committed on or
after July 1, 1981.
(m) When any person has been found to be a persistent felony offender, the court,
in lieu of imposing the sentence authorized by section 53a-35a for the crime of which
such person presently stands convicted, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony; provided the sentence
imposed may not be less than three years, and provided further three years of the sentence
so imposed may not be suspended or reduced by the court.
(n) (1) Whenever a person is arrested for any of the crimes enumerated in subsection (a) of this section, the prosecuting authority shall investigate and ascertain whether
such person has, at separate times prior to the commission of the present crime, been
twice convicted of and imprisoned for any of the crimes enumerated in said subsection
(a) and would be eligible to be sentenced under subsection (h) of this section if convicted
of such crime.
(2) If the prosecuting authority ascertains that such person has, at separate times
prior to the commission of the present crime, been twice convicted of and imprisoned
for any of the crimes enumerated in subsection (a) of this section and such person has
been presented to a geographical area courthouse, the prosecuting authority shall cause
such person to be transferred to a judicial district courthouse.
(3) No court shall accept a plea of guilty, not guilty or nolo contendere from a person
arrested for any of the crimes enumerated in subsection (a) of this section unless it finds
that the prosecuting authority has complied with the requirements of subdivision (1) of
this subsection.
(4) If the prosecuting authority ascertains that such person has, at separate times
prior to the commission of the present crime, been twice convicted of and imprisoned
for any of the crimes enumerated in subsection (a) of this section but decides not to
initiate proceedings to seek the sentence enhancement provided by subsection (h) of
this section, the prosecuting authority shall state for the record the specific reason or
reasons for not initiating such proceedings.
(5) If the prosecuting authority ascertains that such person has, at separate times
prior to the commission of the present crime, been twice convicted of and imprisoned for
any of the crimes enumerated in subsection (a) of this section and initiates proceedings to
seek the sentence enhancement provided by subsection (h) of this section, but subsequently decides to terminate such proceedings, the prosecuting authority shall state for
the record the specific reason or reasons for terminating such proceedings.
(1969, P.A. 828, S. 40; 1971, P.A. 871, S. 15; P.A. 73-616, S. 40; P.A. 76-336, S. 20; P.A. 80-442, S. 12, 28; P.A. 83-4, S. 1, 2; P.A. 85-603; P.A. 92-260, S. 18; P.A. 94-37, S. 1; June Sp. Sess. P.A. 99-2, S. 48; P.A. 01-84, S. 18, 26; Jan.
Sp. Sess. P.A. 08-1, S. 6, 7; P.A. 08-51, S. 1, 2.)
History: 1971 act removed requirements that offenders under Subsecs. (a) and (b) have been previously convicted and
imprisoned "two or more times" and "at separate times" and redefined persistent larceny offender as one who stands
convicted of larceny in "the third or fourth degree" rather than in "the second or a lesser degree" in Subsec. (c); P.A. 73-616 corrected section reference re assault with intent to kill, substituting Sec. 54-117 for Sec. 53-117 in Subsec. (a); P.A.
76-336 substituted sexual assault in first or third degree or sexual assault in first or third degree with a firearm for "rape"
in Subsec. (a) and specified applicability of conviction for crimes enumerated in Secs. 53a-72, 53a-75 or 53a-78 prior to
October 1, 1975; P.A. 80-442 specified applicability of Subsec. (b) to persistent "serious" felony offenders, inserted new
Subsec. (d) re persistent felony offenders, relettering as necessary, amended Subsecs. (f) to (h), formerly (e) to (g), re
crimes committed on or after July 1, 1981, and added Subsec. (i) re extended incarceration effective July 1, 1981; P.A.
83-4 amended Subsec. (c) to reflect the establishment of six degrees of larceny pursuant to P.A. 82-271 by including
persons convicted of larceny in the third degree "in violation of the provisions of section 53a-124 in effect prior to October
1, 1982" and larceny in the "fifth or sixth" degree; P.A. 85-603 made a technical change to Subsec. (h) and rewrote some
of the language of said Subsec. to reflect said change; P.A. 92-260 amended Subsec. (a) to replace an obsolete reference
to the offense of "sexual assault in the first degree with a firearm" with its revised name of "aggravated sexual assault in
the first degree", and made other minor technical changes in Subsecs. (a), (b) and (d); P.A. 94-37 amended Subsec. (f) to
revise the penalty for a person found to be a persistent dangerous felony offender by replacing the provision that permitted
the court to impose the sentence of imprisonment authorized for a class A felony with the provision requiring the court to
sentence such person to a term of imprisonment of not more than 40 years and by adding the provision requiring the court
to sentence such person to a term of imprisonment of not more than life if such person has been twice convicted and
imprisoned for any of the crimes enumerated in Subsec. (a)(2); June Sp. Sess. P.A. 99-2 amended Subsec. (a) to delete
from category of a persistent dangerous felony offender a person who stands convicted of sexual assault in the first or third
degree, aggravated sexual assault in the first degree or sexual assault in the third degree with a firearm and has been
previously convicted and imprisoned for more than one year for any of said crimes or any predecessor statutes, or an
attempt to commit any of said crimes, to revise and restructure Subsec. to reflect such deletion and to revise Subdiv. and
Subpara. indicators accordingly, added new Subsec. (b) re persistent dangerous sexual offender, new Subsec. (d) re persistent serious sexual offender, new Subsec. (i) re penalty for persistent dangerous sexual offender and new Subsec. (k)
re penalty for persistent serious sexual offender, relettering intervening and remaining Subsecs. accordingly, and made
provisions of section gender neutral; P.A. 01-84 amended Subsec. (d) to replace in provision re the offense for which the
person presently stands convicted the reference to "a violation of subdivision (2) of section 53-21" with "a violation of
subdivision (2) of subsection (a) of section 53-21", to replace in provision re offenses for which the person was previously
convicted the reference to "a violation of subdivision (2) of section 53-21" with "a violation of subdivision (2) of section
53-21 of the general statutes, committed on or after October 1, 1995, and prior to October 1, 2000," and to add reference
to a prior conviction for "a violation of subdivision (2) of subsection (a) of section 53-21", effective July 1, 2001; Jan.
Sp. Sess. P.A. 08-1 amended Subsec. (h) to replace reference to "subdivision (2) of subsection (a) of this section" with
"subparagraph (B) of subdivision (1) of subsection (a) of this section", amended Subsecs. (h) and (i) to delete requirement
for imposition of enhanced sentence that "the court is of the opinion that such person's history and character and the nature
and circumstances of such person's criminal conduct indicate that extended incarceration and lifetime supervision will
best serve the public interest" and amended Subsecs. (j) to (m) to delete requirement for imposition of enhanced sentence
that "the court is of the opinion that such person's history and character and the nature and circumstances of such person's
criminal conduct indicate that extended incarceration will best serve the public interest", effective January 25, 2008, and
amended Subsec. (a) to include the crimes of home invasion, burglary in the first degree and burglary in the second degree
with a firearm in Subdivs. (1)(A) and (2)(B)(i), effective March 1, 2008; P.A. 08-51 amended Subsec. (h) to replace "the
court, in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person
presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted
was committed on or after July 1, 1981," with "the court, in lieu of imposing the sentence of imprisonment authorized by
the general statutes for the crime of which such person presently stands convicted", insert Subdiv. designators (1) and (2)
and in Subdiv. (1) replace a term of imprisonment of "not more than forty years" with a term of imprisonment "that is not
(A) less than twice the minimum term of imprisonment authorized for such crime or (B) more than twice the maximum
term of imprisonment authorized for such crime or forty years, whichever is greater, provided, if a mandatory minimum
term of imprisonment is authorized for such crime, such sentence shall include a mandatory minimum term of imprisonment
that is twice such authorized mandatory minimum term of imprisonment", and in Subdiv. (2) replace reference to "subparagraph (B) of subdivision (1) of subsection (a) of this section" with "subsection (a) of this section" and replace a term of
imprisonment "of not more than life" with a term of imprisonment "that is not less than three times the minimum term of
imprisonment authorized for such crime or more than life, provided, if a mandatory minimum term of imprisonment is
authorized for such crime, such sentence shall include a mandatory minimum term of imprisonment that is three times
such authorized mandatory minimum term of imprisonment", and added Subsec. (n) re obligations of the prosecuting
authority and the court whenever a person is arrested for any of the crimes enumerated in Subsec. (a), effective May 8, 2008.
Annotations to former section 53-67:
Cited. 157 C. 466. Cited. 168 C. 395.
Annotations to present section:
Cited. 176 C. 270. Cited. 180 C. 660. Cited. 184 C. 215. Cited. 188 C. 27. Cited. 191 C. 180. Cited. 192 C. 471. Cited.
194 C. 573; Id., 692. Cited. 195 C. 326. Cited. 197 C. 280. Cited. 198 C. 158; Id., 273. Cited. 203 C. 506. Cited. 207 C.
619. Cited. 218 C. 273. Cited. 226 C. 601. Cited. 234 C. 324. Cited. 240 C. 317. Cited. 242 C. 143. Finding by trial court,
rather than jury, that imposing extended incarceration would best serve the public interest clearly violated defendant's
constitutional rights under the 6th Amendment to U. S. Constitution. Section is unconstitutional to the extent it does not
provide that defendant is entitled to have jury make a required finding that exposes defendant to a greater punishment than
that authorized by jury's guilty verdict. 283 C. 748.
Cited. 9 CA 686. Cited. 12 CA 1. Cited. 31 CA 140. Cited. 36 CA 401. Cited. 45 CA 390. Admission of certified copy
of judgment sufficient to prove persistent dangerous felony offender. 50 CA 521.
Subsec. (a):
Constitutionality of dangerous felony offender statutes has long been upheld. 173 C. 545. Nothing in statute precludes
state from offering probative evidence to clarify an official judgment of conviction in order to prove defendant a second
offender. 194 C. 573. No viable basis for challenge to statute on the grounds of vagueness. 195 C. 326. Cited. Id., 475.
Cited. 193 C. 273. Cited. 200 C. 350. Subdiv. (1) cited. Id., 453. Subdiv. (2) cited. Id. Subdivs. (1) and (2)(B) cited. 202
C. 509. Cited. 203 C. 81. Cited. 206 C. 621. Cited. 207 C. 276. Cited. 210 C. 573. Cited. 213 C. 97. Cited. 216 C. 220.
Cited. 224 C. 445. Cited. 232 C. 455.
Cited. 17 CA 490. Cited. 19 CA 571. Cited. 29 CA 274. Cited. 37 CA 672; Id., 733. Cited. 39 CA 82. Subdiv. (1) cited.
46 CA 131. Jury improperly found defendant to be a persistent dangerous felony offender because his conviction of
attempted assault in the first degree is not one of the qualifying felonies enumerated in subsection. 51 CA 171.
Cited. 43 CS 77.
Subsec. (b):
Presentence report used to prove that defendant was not persistent felony offender under this subsection. 169 C. 263.
Cited. 182 C. 176. Failure to allege imprisonment under provisions of the statute not considered reversible error where
proof of imprisonment was established during trial and defendant failed to request complete statement of facts. 184 C.
215. Cited. Id., 369. Cited. 187 C. 264. Cited. 224 C. 397. Cited. 227 C. 711; Id., 751. Cited. 232 C. 455.
Cited. 9 CA 133. Cited. 10 CA 279. Cited. 12 CA 375. Cited. 13 CA 438. Cited. 20 CA 586. Cited. 31 CA 178. Cited.
34 CA 1. Cited. 35 CA 405. Cited. 37 CA 733. Cited. 39 CA 82; Id., 789. Cited. 45 CA 369.
Subsec. (c):
Cited. 202 C. 369.
"By pleading nolo contendere to the charge of being a persistent larceny offender, defendant waived her right to appeal
this issue." 4 CA 676. Cited. 14 CA 88. Cited. 21 CA 331. Cited. 37 CA 228.
Subsec. (d):
Language of section and its legislative purpose require sequence of offense, conviction and punishment for each prior
felony before enhanced penalty as a persistent offender attaches. 240 C. 317.
Cited. 41 CA 391.
Subsec. (e):
Cited. 194 C. 573.
Subsec. (f):
Cited. 169 C. 263. Cited. 187 C. 264. Cited. 200 C. 453. Cited. 207 C. 276. Purpose is to allow sentencing court to
impose a more severe sentence than would be allowed for the substantive offense. Subsection requires sentencing court
to consider defendant's history and character and the nature and circumstances of his criminal conduct and whether extended
incarceration and lifetime supervision will best serve the public interest. There is no requirement that sentences imposed
be strictly proportional to the nature of substantive offense or offenses of which defendant was convicted. Nature of
substantive offense is only one factor to be considered by sentencing court. 254 C. 613.
Cited. 19 CA 571.
Subsec. (g):
Cited. 224 C. 397. Cited. 227 C. 751.
Cited. 37 CA 733. Cited. 45 CA 369.
Subsec. (h):
Cited. 21 CA 331. Cited. 37 CA 228. Court followed State v. Bell in holding that jury and not the court must make
finding of whether defendant's extended incarceration will best serve the public interest. 105 CA 278.