Construing the Restitution Statutes

• Publication year: 2023
• Pages: 28

Construing the Restitution Statutes Vol. 52, No. 2 [Page 28] Colorado Lawyer March, 2023

CRIMINAL LAW

This article discusses key provisions of the Colorado restitution statutes and includes practical tips for prosecutors, defendants, and trial courts based on recent court decisions dealing with restitution in Colorado.

Colorado restitution statutes have been a primary source of caselaw during the last two decades. In 2021, the Colorado Supreme Court further developed that caselaw with its decision in People v. Weeks. As Justice Carlos Samour notes in the opening line of Weeks: "Old habits die hard."^[1] Weeks clarifies two separate provisions of CRS § 18-1.3-603—a statute concerning the assessment of restitution—that deal with the 91-day deadline for courts to determine the final amount of restitution in a sentence.^[2] The decision outlines a framework for how trial courts and parties should resolve cases in which the exact amount of restitution is deferred to a later time.^[3] This article reviews some of the important components of Weeks, as well as the best practices envisioned by the Court for litigants and trial courts going forward. It also highlights recent caselaw that refined the way Colorado interprets its restitution statutes in general.

The Issue: Confusion Caused by CRS § 18-1.3-603

Colorado law requires that all judgments of conviction determine whether and to what extent restitution should be ordered.^[4] As written, CRS 18-1.3-603 created a source of confusion for trial courts and parties alike because subsections (1)(b) and (2) seemed to give the same deadline for both supplying information to support a determination of restitution and the determination of restitution itself.^[5] In practice, how can the prosecution provide information supporting a motion for restitution and the trial court issue an order for restitution by the same deadline?^[6] Imposing the same deadline would preclude the defendant from having a reasonable and meaningful opportunity to contest the proposed amount and order.^[7] Weeks provided much-needed clarification on how these provisions work together and outlined best practices to help Colorado courts and litigants comply with the restitution statute.^[8]

The Law: CRS § 18-1.3-603

Subsection (1) of CRS § 18-1.3-603 details the four ways in which the trial court must determine restitution at the judgment of conviction.^[9]Trial courts can enter restitution orders that include:^[10]

1. a specific, final amount that the defendant must pay, determined at the judgment of conviction;

2. a reservation of the restitution amount to be determined at a later date (within 91 days unless there is good cause to extend this deadline);

3. a determination that the defendant pay actual, future costs of the treatment a victim receives for injury sustained as a result of the convicted conduct; or

4. a determination that no restitution is required.

The statute requires one or more of these orders to be entered, which means it is possible to enter a restitution order that is a combination of the four options. It is not uncommon for courts to enter an order requiring the defendant to pay a specific amount of restitution and an order for actual costs of specific future treatment.

Subsection (2) of CRS § 18-1.3-603 requires the trial court to enter an amount of restitution based on information provided by the prosecuting attorney.^[11] The prosecution must submit this information before the judgment of conviction. If the information supporting a motion for restitution is unavailable and restitution is reserved in the manner prescribed by subsection (1)(b), then the information must be submitted within 91 days after the judgment of conviction.^[12]Like the deadline given to trial courts in subsection (1)(b), this deadline can be extended, but only if the trial court finds extenuating circumstances have prevented the prosecution from obtaining the information.^[13]

Clarification in Weeks

As the Court emphasized in Weeks, CRS § 18-1.3-603(2) envisions a requirement that any motion for restitution must be made before or during the sentencing hearing.^[14] This is because restitution is a component of a final judgment.^[15]This distinction is important because some trial courts, and their respective prosecutors and defendants, slipped into the habit of allowing the prosecution to file the motion for restitution, rather than the information supporting the motion, during the 91-day period.^[16] The Court further determined that subsection (1)(b) refers to the trial court's deadline in entering a final determination of the restitution amount,^[17]and subsection (2) refers to the prosecution's deadline for providing the information to support a motion for restitution.^[18] The Court reached this distinction by looking at the context of subsection (1)(b), which deals entirely with orders.^[19] Trial courts, not the prosecution, have the authority to enter orders.^[20] Both subsections, however, require an express finding of good cause to extend the 91-day deadline,^[21] and the extension must be granted before the 91-day deadline expires.^[22]Extenuating circumstances affecting the prosecution's ability to meet the 91-day deadline is one of many reasons that a trial court could extend the deadline for good cause contemplated by subsection (1)(b).^[23]

Going Forward When Reserving Restitution: Best Practices

A unique but helpful aspect of the Weeks decision is the Court's description of how it envisions subsections (1)(b) and (2) working in reality.^[24] A key component for all parties to keep in mind, including the trial court, is that subsection (1)(b) is triggered where the prosecution has not determined the amount of restitution due to a lack of information but has properly moved to reserve that determination.^[25]

Tips for Prosecutors

Prosecutors should make a motion for restitution before or at the sentencing hearing.^[26] If the prosecution is unable to determine the exact amount at that point, it should communicate that to the trial court and provide an anticipated date at which that information will become available.^[27]Any extenuating circumstances that will prevent the prosecution from determining the restitution amount by the 91-day deadline should be communicated as soon as possible, ideally at the sentencing hearing.^[28]

Important reminders. CRS § 18-1.3-603(2) allows the prosecution to submit information in support of a motion—not the motion itself—after the sentencing hearing.^[29] Subsection (3)(a) of this statute, which allows the trial court to increase the preliminary amount where additional victims or losses are discovered, only applies in situations like the one described in subsection (1)(b) where a final restitution amount has not yet been determined.^[30] Additionally, subsection (3)(a) does not create an exception to the deadlines in subsection (1)(b).^[31]

Tips for Defendants

If a (1)(b) order is entered at the sentencing hearing, defendants can either: (1) enter an agreement with the prosecution concerning the preliminary restitution order, (2) convey an intent to oppose the future amount, or (3) take a wait-and-see approach and contest the amount once the prosecution has provided the supporting information.^[32] No matter what option they choose...