2021 Colorado Code
Title 18 - Criminal Code
Article 1.3 - Sentencing in Criminal Cases
Part 6 - Restitution
§ 18-1.3-603. Assessment of Restitution - Corrective Orders

Universal Citation: CO Code § 18-1.3-603 (2021)
  1. [ ] Every order of conviction of a felony, misdemeanor, petty, or traffic misdemeanor offense, except any order of conviction for a state traffic misdemeanor offense issued by a municipal or county court in which the prosecuting attorney is acting as a special deputy district attorney pursuant to an agreement with the district attorney's office, shall include consideration of restitution. Each such order shall include one or more of the following:
    1. An order of a specific amount of restitution be paid by the defendant;
    2. An order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined within the ninety-one days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined;
    3. An order, in addition to or in place of a specific amount of restitution, that the defendant pay restitution covering the actual costs of specific future treatment of any victim of the crime; or
    4. Contain a specific finding that no victim of the crime suffered a pecuniary loss and therefore no order for the payment of restitution is being entered.
  2. The court shall base its order for restitution upon information presented to the court by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. Further, the prosecuting attorney shall present this information to the court prior to the order of conviction or within ninety-one days, if it is not available prior to the order of conviction. The court may extend this date if it finds that there are extenuating circumstances affecting the prosecuting attorney's ability to determine restitution.
  3. Any order for restitution may be:
    1. Increased if additional victims or additional losses not known to the judge or the prosecutor at the time the order of restitution was entered are later discovered and the final amount of restitution due has not been set by the court; or
    2. Decreased:
      1. With the consent of the prosecuting attorney and the victim or victims to whom the restitution is owed; or
      2. If the defendant has otherwise compensated the victim or victims for the pecuniary losses suffered.
      1. Any order for restitution entered pursuant to this section is a final civil judgment in favor of the state and any victim. Notwithstanding any other civil or criminal statute or rule, any such judgment remains in force until the restitution is paid in full. The provisions of article 18.5 of title 16, C.R.S., apply notwithstanding the termination of a deferred judgment and sentence or a deferred adjudication, the entry of an order of expungement pursuant to section 19-1-306, C.R.S., or an order to seal entered pursuant to part 7 of article 72 of title 24, C.R.S. (a) (I)Any order for restitution entered pursuant to this section is a final civil judgment in favor of the state and any victim. Notwithstanding any other civil or criminal statute or rule, any such judgment remains in force until the restitution is paid in full. The provisions of article 18.5 of title 16, C.R.S., apply notwithstanding the termination of a deferred judgment and sentence or a deferred adjudication, the entry of an order of expungement pursuant to section 19-1-306, C.R.S., or an order to seal entered pursuant to part 7 of article 72 of title 24, C.R.S.
      2. Notwithstanding the provisions of subparagraph (I) of this paragraph (a), two years after the presentation of the defendant's original death certificate to the clerk of the court or the court collections investigator, the court may terminate the remaining balance of the judgment and order for restitution if, following notice by the clerk of the court or the court collections investigator to the district attorney, the district attorney does not object and there is no evidence of a continuing source of income of the defendant to pay restitution. The termination of a judgment and order pursuant to this subparagraph (II) does not terminate an associated judgment against a defendant who is jointly and severally liable with the deceased defendant.
    1. Any order for restitution made pursuant to this section is also an order that:
      1. Except as provided in subsection (4)(b.5) of this section, the defendant owes simple interest from the date of the entry of the order at the rate of eight percent per annum; and
      2. The defendant owes all reasonable and necessary attorney fees and costs incurred in collecting such order due to the defendant's nonpayment.
        1. (b.5) (I) Interest on an order for restitution does not accrue while:
          1. The defendant is serving a sentence in a correctional facility operated by or under contract with the department of corrections located within the state; or
          2. The defendant is in a juvenile delinquency case and is under twenty-one years of age.
        2. In any case where interest was accruing on an order of restitution at the rate of twelve percent per annum, on and after January 1, 2020, interest accrues at the rate of eight percent per annum.
    2. The entry of an order for restitution under this section creates a lien by operation of law against the defendant's personal property and any interest that the defendant may have in any personal property.
    3. Any order of restitution imposed shall be considered a debt for “willful and malicious” injury for purposes of exceptions to discharge in bankruptcy as provided in 11 U.S.C. sec. 523.
    4. The clerk of the court is authorized to adjust the unpaid balance in the case upon proof that any restitution or related interest amounts have been or will be satisfied outside of the court registry and receipting process regardless of when the restitution order and judgment were entered. The accounting adjustment does not modify a court's order.
  4. If more than one defendant owes restitution to the same victim for the same pecuniary loss, the orders for restitution shall be joint and several obligations of the defendants.
  5. Any amount paid to a victim under an order of restitution shall be set off against any amount later recovered as compensatory damages by such victim in any federal or state civil proceeding.
  6. When a person's means of identification or financial information was used without that person's authorization in connection with a conviction for any crime in violation of part 2, 3, or 4 of article 4, part 1, 2, 3, or 7 of article 5, or article 5.5 of this title, the sentencing court may issue such orders as are necessary to correct a public record that contains false information resulting from any violation of such laws. In addition, the restitution order shall include any costs incurred by the victim related to section 16-5-103, C.R.S.
    1. Notwithstanding the provisions of subsection (1) of this section, for a non-felony conviction under title 42, C.R.S., the court shall order restitution concerning only the portion of the victim's pecuniary loss for which the victim cannot be compensated under a policy of insurance, self-insurance, an indemnity agreement, or a risk management fund.
    2. The court, in determining the restitution amount, shall consider whether the defendant or the vehicle driven by the defendant at the time of the offense was covered by:
      1. A complying policy of insurance or certificate of self-insurance as required by the laws of this state;
      2. Self-insurance including but not limited to insurance coverage pursuant to the provisions of part 15 of article 30 of title 24, C.R.S.; or
      3. Any other insurance or indemnity agreement that would indemnify the defendant for any damages sustained by the victim.
      1. Except as otherwise provided in this paragraph (c), a court may not award restitution to a victim concerning a pecuniary loss for which the victim has received or is entitled to receive benefits or reimbursement under a policy of insurance or other indemnity agreement. (c) (I) Except as otherwise provided in this paragraph (c), a court may not award restitution to a victim concerning a pecuniary loss for which the victim has received or is entitled to receive benefits or reimbursement under a policy of insurance or other indemnity agreement.
      2. (A) A court may award a victim restitution for a deductible amount under his or her policy of insurance.
      1. (Deleted by amendment,L. 2004, p. 904, § 28, effective May 21, 2004.) (d) (I) (Deleted by amendment,L. 2004, p. 904, § 28, effective May 21, 2004.)
      2. Nothing in this paragraph (d) shall prohibit a nonowner driver or passenger in the vehicle from being awarded restitution if the driver or passenger was not covered by his or her own medical payments coverage policy.
      1. Notwithstanding any provision of law to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to defend a defendant in a hearing concerning restitution. No court shall interpret an indemnity or insurance contract so as to obligate an insurance company, risk management fund, or public entity to defend a defendant at a restitution hearing absent a specific agreement. (e) (I) Notwithstanding any provision of law to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to defend a defendant in a hearing concerning restitution. No court shall interpret an indemnity or insurance contract so as to obligate an insurance company, risk management fund, or public entity to defend a defendant at a restitution hearing absent a specific agreement.
      2. Notwithstanding any provision of law, indemnity contract, or insurance contract to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to pay or otherwise satisfy a civil judgment entered pursuant to this part 6, or to indemnify a defendant for an amount awarded in a restitution order.
    3. Nothing in this article shall be construed to limit or abrogate the rights and immunities set forth in the “Colorado Governmental Immunity Act”, article 10 of title 24, C.R.S.
    4. The provisions of this subsection (8) shall not preclude the court, pursuant to article 4.1 of title 24, C.R.S., from ordering restitution to reimburse an expenditure made by a victim compensation fund.
  7. For a conviction for human trafficking for involuntary servitude, as described in section 18-3-503, or for human trafficking for sexual servitude, as described in section 18-3-504, the court shall order restitution, if appropriate, pursuant to this section even if the victim is unavailable to accept payment of restitution.
    1. If, as a result of the defendant's conduct, a crime victim compensation board has provided assistance to or on behalf of a victim pursuant to article 4.1 of title 24, C.R.S., the amount of assistance provided and requested by the crime victim compensation board is presumed to be a direct result of the defendant's criminal conduct and must be considered by the court in determining the amount of restitution ordered.
    2. The amount of assistance provided is established by either:
      1. A list of the amount of money paid to each provider; or
      2. If the identity or location of a provider would pose a threat to the safety or welfare of the victim, summary data reflecting what total payments were made for:
        1. Medical and dental expenses;
        2. Funeral or final disposition expenses;
        3. Mental health counseling;
        4. Wage or support losses; or
        5. Other expenses.
    3. Records of a crime victim compensation board relating to a claimed amount of restitution are subject to the provisions of section 24-4.1-107.5, C.R.S.
Editor's note: This version of the introductory portion to subsection (1) is effective until March 1, 2022.

(1) [ ] Every order of conviction of a felony, misdemeanor, petty offense, civil infraction, or traffic misdemeanor offense, except any order of conviction for a state traffic misdemeanor offense issued by a municipal or county court in which the prosecuting attorney is acting as a special deputy district attorney pursuant to an agreement with the district attorney's office, shall include consideration of restitution. Each such order shall include one or more of the following:

Editor's note: This version of the introductory portion to subsection (1) is effective March 1, 2022.

History. Source: L. 2002: Entire article added with relocations, p. 1421, § 2, effective October 1. L. 2003: (8) added, p. 1048, § 1, effective September 1. L. 2004: (8)(c)(I), (8)(c)(II)(B), and (8)(d) amended, p. 904, § 28, effective May 21. L. 2012: (1)(b) and (2) amended,(SB 12-175), ch. 208, p. 866, § 112, effective July 1. L. 2013: (7) amended,(HB 13-1146), ch. 43, p. 119, § 2, effective March 15. L. 2014: (4)(a) amended,(HB 14-1035), ch. 21, p. 152 , § 2, effective March 7; (9) added,(HB 14-1273), ch. 282, p. 1150, § 2, effective July 1. L. 2015: (10) added,(HB 15-1035), ch. 60, p. 147, § 6, effective March 30. L. 2016: (4)(a), IP(4)(b), and (4)(b)(I) amended and (4)(e) added,(SB 16-065), ch. 277, p. 1142, § 1, effective July 1. L. 2019: (4)(b)(I) amended and (4)(b.5) added,(HB 19-1310), ch. 303, p. 2778, § 1, effective July 1. L. 2021: (10)(b)(II)(B) amended,(SB 21-006), ch. 123, p. 496, § 22, effective September 7; IP(1) amended,(SB 21-271), ch. 462, p. 3171, § 189, effective March 1, 2022.


Editor's note:
  1. This section is similar to former § 16-18.5-103 as it existed prior to 2002.
  2. Section 31(2) of chapter 123 (SB 21-006), Session Laws of Colorado 2021, provides that the act changing this section applies to final dispositions of human remains or human fetuses made on or after September 7, 2021.
  3. Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
ANNOTATION

Defendant's right against double jeopardy is not violated when, having deferred determination of the amount of restitution as permitted under subsection (1), the court ordered restitution after the defendant began to serve his or her sentence. People v. Rosales, 134 P.3d 429 (Colo. App. 2005).

Restitution interest statute is not unconstitutionally vague as to the frequency with which interest may be assessed. The allowable enforcement methods do not create a danger of arbitrary and capricious enforcement; thus, they satisfy minimal due process requirements. When the restitution interest statute is considered in the context of the state's restitution scheme as a whole, its standards of enforcement are sufficient to clarify which methods of calculation and assessment are acceptable. Further, it is generally accepted that interest may be calculated monthly, as long as that calculation approximates the specified yearly interest rate. People in Interest of A.N., 2019 COA 67 , __ P.3d __.

The federal Controlled Substances Act does not preempt the state's restitution statutes. There is no positive conflict between the two statutes. The restitution statutes do not require a defendant to violate the Controlled Substances Act. Ordering restitution to a licensed marijuana business and thereby acknowledging a state property interest in marijuana does not positively conflict with the Controlled Substances Act. People in Interest of D.M., 2019 COA 56 M, 444 P.3d 834.

The 90-day deadline in subsection (2) is not a jurisdictional limit that would prevent the court from reconsidering a motion for restitution. People v. Harman, 97 P.3d 290 (Colo. App. 2004).

A court-ordered deadline for determination of restitution, short of the statutory 90-day period, is not a jurisdictional limit. People v. McCann, 122 P.3d 1085 (Colo. App. 2005).

“Determination” of restitution under subsection (1)(b) requires the court to order a specific amount of restitution within ninety-one days unless good cause exists to extend the deadline. Trial court erred in entering restitution order more than eleven months after sentencing without good cause for delaying its ruling. People v. Weeks, 2020 COA 44 , __ P.3d __.

A court may find good cause to extend its ninety-one day deadline to order restitution if the prosecution needs to use most or all of the ninety-one day period under subsection (2) to present the restitution request. However, the court's finding of good cause must rest on the specific facts of the case. People v. Weeks, 2020 COA 44 , __ P.3d __.

There was good cause to extend the subsection (1)(b) deadline to amend the restitution requests because the victim continued to incur and pay attorney fees that were part of the restitution. Given that finding, the district court must necessarily have found good cause to extend its own determination of restitution, which also gave the defendant time to respond to the prosecution's request. People v. Roddy, 2020 COA 72 , __ P.3d __.

The ninety-one-day deadline does not apply to determinations of restitution following an appeal and remand. People v. Weeks, 2020 COA 44 , __ P.3d __.

Subsection (1)(b) requires a court to order a specific amount of restitution within ninety-one days unless good cause is shown for extending the deadline. People v. Rice, 2020 COA 143 , 478 P.3d 1276.

Good cause may be implied; there is no requirement for the court to make a written or oral finding of good cause. Implied good cause must be shown or demonstrated in the record; an appellate court cannot just assume good cause existed because the restitution order was entered after the ninety-one-day deadline. People v. Rice, 2020 COA 143 , 478 P.3d 1276.

The record in this case demonstrates good cause. The restitution order could not be entered within the ninety-one-day deadline due to a docket scheduling issue. People v. Rice, 2020 COA 143 , 478 P.3d 1276.

An extension of the ninety-one-day deadline does not have to be granted within the original ninety-one-day deadline. People v. Rice, 2020 COA 143 , 478 P.3d 1276.

Extenuating circumstances affecting the prosecutor's ability to calculate the amount of restitution may be a factor in finding good cause for the late determination pursuant to subsection (1)(b). People v. Harman, 97 P.3d 290 (Colo. App. 2004).

Under the plain language of subsection (1), restitution may be denied only after a finding that the victim has not suffered a pecuniary loss. People v. Stovall, 75 P.3d 1165 (Colo. App. 2003).

Absent such a finding, sentencing is not final until restitution is ordered. People v. Rosales, 134 P.3d 429 (Colo. App. 2005).

Court rejected defendant's contention that “punitive” provisions of interest and attorney fees in subsection (4) constitute an ex post facto law. The restitution act simply facilitates collection from defendant of the sums he was ordered to pay at the time of his sentencing. People v. Lowe, 60 P.3d 753 (Colo. App. 2002) (decided under former § 16-18.5-103 ).

Restitution interest statute allows the judicial department to compute and assess interest on a monthly basis. People in Interest of A.N., 2019 COA 67 , __ P.3d __.

Court could liberally construe statute to authorize interest from the date of the offense instead of limiting the calculation of interest from the date of the entry of the order, since statute merely provides a certain, definite postjudgment interest rate but does not mandate that only postjudgment interest may be imposed. People v. Roberts, 114 P.3d 75 (Colo. App. 2005), aff'd on other grounds, 130 P.3d 1005 (Colo. 2006).

Because post-judgment interest on the restitution amount awarded has the statutory purpose to encourage speedy payment of the restitution order, which is different from the purpose of pre-judgment interest, a trial court must impose both pre-judgment interest and post-judgment interest in probationary restitution orders. Roberts v. People, 130 P.3d 1005 (Colo. 2006); People v. Cardenas, 262 P.3d 913 (Colo. App. 2011).

A sentence that does not include restitution is illegal, because the consideration of restitution is mandatory. The court was required to correct the mittimus to reflect restitution. People v. Smith, 121 P.3d 243 (Colo. App. 2005).

Restitution component satisfied once ordered, even though specific amount not set until two years after sentence imposed. Once restitution ordered, although not set, judgment of conviction became final and appealable, even though district court retained jurisdiction to determine restitution amount. Sanoff v. People, 187 P.3d 576 (Colo. 2008).

An order setting the amount of restitution is itself an appealable order and is subject to time limits for filing an appeal. People v. Hill, 296 P.3d 121 (Colo. App. 2011).

Interest rate on orders for restitution entered on and after September 1, 2000, is 12 percent, even though offense was committed prior to the effective date of the section. Section merely codified a discretionary power and sets a uniform interest rate. People v. Garcia, 55 P.3d 243 (Colo. App. 2002).

The term “per annum” does not limit the judicial department to collecting interest payments annually. Instead, the judicial department may collect interest on a monthly basis. People v. Ray, 2018 COA 158 , 452 P.3d 117.

The state legislature cannot preempt federal bankruptcy law and declare certain debts to be nondischargeable. Subsection (4)(d) cannot preempt federal law. In re McNabb, 287 B.R. 820 (Bankr. D. Colo. 2003 ).

Trial court has broad discretion in determining the terms and conditions of a restitution order, and the court's ruling will not be disturbed unless it abuses its discretion when it misconstrues or misapplies the law. The court misapplied the law in ordering restitution for the cost of installing locks on all interior doors of office that was burglarized. People v. Reyes, 166 P.3d 301 (Colo. App. 2007).

In order to receive restitution, the loss must be pecuniary and may be specifically mentioned in statute or the loss or injury must be proximately caused by the offender's conduct that can be reasonably calculated and recompensed in money. Awarding restitution for installing locks on victim's interior doors would put the victim in a better financial position than victim had been in had defendant's conduct not occurred; therefore, installing the locks was not a loss proximately caused by defendant's conduct and did not qualify for a restitution award. People v. Reyes, 166 P.3d 301 (Colo. App. 2007).

The cost of a hospital sexual assault examination that is initiated by the victim is a pecuniary loss that must be included as part of the restitution order. This is distinct from the situation in which law enforcement initiates the sexual assault examination. In that case, it is a law enforcement expense not subject to restitution. People v. Montanez, 2012 COA 101 , 300 P.3d 940.

The value of an employee's time constitutes actual pecuniary damages sustained by a company when spent on problems caused by a criminal act, and the value of that time is properly included in a restitution award, regardless of whether the company expends any funds in addition to an employee's regular salary. People v. Stotz, 2016 COA 16 , 381 P.3d 357.

A specific threat that is still outstanding against the victim is sufficient to be considered the “proximate cause” of the victim's monetary loss, and, thus, defendant can be ordered to pay restitution for those losses. People v. Bryant, 122 P.3d 1026 (Colo. App. 2005).

“Lost wages”, for purposes of criminal restitution, are wages not received by the victim from the date the crime was committed to the date restitution is imposed or sooner if the victim is comparably employed prior to that date. “Loss of future earnings” are earnings not expected to be received by the victim after restitution is imposed. People v. Bryant, 122 P.3d 1026 (Colo. App. 2005); People ex rel. D.S.L., 134 P.3d 522 (Colo. App. 2006).

Although a court may order restitution for lost wages, it may not order restitution for loss of future earnings. People ex rel. D.S.L., 134 P.3d 522 (Colo. App. 2006).

While defendant is entitled to a setoff against a restitution order to the extent of any money actually paid to a victim for the same damages covered by the order, defendant bears the burden of proof in apportioning the damages. Where victim's parents received an unapportioned settlement from defendant's automobile insurer, defendant bears burden of presenting evidence as basis for allocating the unapportioned settlement to pecuniary losses covered by the restitution order. People v. Lassek, 122 P.3d 1029 (Colo. App. 2005), overruled on other grounds in Sullivan v. People, 2020 CO 58, 465 P.3d 25.

Court should hold hearing on how much of settlement proceeds offset a restitution order at which the defendant bears the burden of establishing the offset. When receipt of settlement proceeds from a third party is silent as to what it covers, the court should hold a hearing on the amount of settlement that relates to the victim's losses covered by the restitution. The defendant bears burden of proof on the amount of the offset. People v. Stanley, 2017 COA 121 , 405 P.3d 518.

Changing the restitution payee does not constitute a new restitution request. Although the restitution statute does not specifically authorize a change of payee, it does not bar such a change either. Allowing the change of payee serves the statutory purposes of rehabilitation and deterrence. Johnson v. People, 2016 CO 59, 379 P.3d 323.

Sentencing court not barred by collateral estoppel and double jeopardy principles from considering acquitted conduct in determining an award of restitution. People v. Pagan, 165 P.3d 724 (Colo. App. 2006). But see Cowen v. People, 2018 CO 96, 431 P.3d 215 (disapproving restitution for acquitted charges).

Section does not prescribe a maximum restitution amount. Therefore, the rule set forth in Apprendi and Blakely concerning prescribed statutory maximum sentences does not apply to restitution orders in Colorado. Restitution is not limited by the jury's findings, but rather includes any pecuniary losses suffered by the victim as a proximate cause of the offender's conduct. People v. Smith, 181 P.3d 324 (Colo. App. 2007).

Burden of proof for establishing the amount of restitution owed is a preponderance of the evidence. People v. Smith, 181 P.3d 324 (Colo. App. 2007).

The standard of review on an appeal challenging the sufficiency of the evidence of a district court's restitution conclusion is to review de novo whether the evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, establishes by a preponderance of the evidence that the defendant caused that amount of loss. But this standard might not apply in every appeal where the proper amount of restitution is at issue. People v. Barbre, 2018 COA 123 , 429 P.3d 95.

The amount of a restitution order is not limited to only the criminal conduct that a defendant is found by a reasonable doubt to have committed. In determining the proper amount of restitution owed, courts may consider both uncharged and acquitted criminal conduct that has been proved by a preponderance of the evidence; courts are not limited to considering only the criminal conduct that a defendant is found beyond a reasonable doubt to have committed. People v. Stotz, 2016 COA 16 , 381 P.3d 357 (disapproved by supreme court in Cowen v. People, 2018 CO 96, 431 P.3d 215).

Defendant only liable for restitution for the losses proximately caused by conduct to which defendant pleaded guilty. People v. Roddy, 2020 COA 72 , __ P.3d __.

A trial court may not impose restitution for pecuniary losses caused by acquitted conduct. Even where a defendant has been convicted of a separate charge, a trial court may not order restitution for losses caused by conduct that formed the basis of a charge of which the defendant has been acquitted. Cowen v. People, 2018 CO 96, 431 P.3d 215.

Or conduct for which the defendant was never criminally charged, or where the charge was dismissed. People v. Sosa, 2019 COA 182 , __ P.3d __.

But dismissed charges in a plea agreement can be the basis for a restitution award. People v. Rice, 2020 COA 143 , 478 P.3d 1276.

Restitution for an offense is limited to the amount consistent with the jury verdict where a defendant is charged with one level of offense but is convicted of only a lower-level offense. Defendant was charged with criminal mischief as a class 6 felony but based on jury interrogatories was convicted of the offense only as a class 1 misdemeanor. Under the reasoning in Cowen v. People, 2018 CO 96, 431 P.3d 215, that trial courts cannot consider acquitted conduct, restitution for the charge is limited to the statutory maximum of $999.99 set for a class 1 misdemeanor. However, additional restitution may be supported by property and nonproperty losses properly attributed to other offenses for which the defendant was convicted. People v. Knapp, 2020 COA 107 , __ P.3d __.

Subsection (10)(a) creates a rebuttable presumption with regard to the amount of restitution owed by an offender. People v. Henry, 2018 COA 48 M, 439 P.3d 33.

Court may not order restitution without a hearing when prosecution must prove the amount of victim's loss and its causal link to defendant, and when defense counsel is present and prepared to contest those matters. Defendant need not be present for the hearing, but his or her counsel must be given the opportunity to contest the amount of restitution ordered. People v. Martinez, 166 P.3d 223 (Colo. App. 2007).

When restitution is reserved at the prosecution's request and the defendant objects to restitution and demands a hearing, an in-person hearing must be granted. At the hearing, the prosecution must carry its burden and the defendant may contest the prosecution's request or otherwise test the prosecution's evidence. People v. Martinez-Chavez, 2020 COA 39 , 463 P.3d 339.

Defendant's challenge to the amount of restitution that she should be obligated to pay constitutes a claim that her sentence was imposed in an illegal manner. Because her claim was not brought within 120 days of her conviction, the claim was time barred. People v. Bowerman, 258 P.3d 314 (Colo. App. 2010).

Sentencing court does not have the power to increase restitution beyond the previously set amount. Absent a statutorily authorized order reserving a determination of the final amount of restitution due, a judgment of conviction finalizes any specific amount already set. Meza v. People, 2018 CO 23, 415 P.3d 303; People v. Belibi, 2018 CO 24, 415 P.3d 301.

Court has the authority to decrease a restitution order at any time if it finds that the defendant has compensated the victim. If the defendant meets his or her burden of going forward by showing that a settlement agreement was intended to cover the same categories of losses as the restitution order, the burden shifts to the prosecution to rebut the inference of double recovery. People v. Gregory, 2019 COA 184 , 469 P.3d 507.

Under § 16-5-401 , a plea of guilty to facilitate the disposition of a case constitutes a waiver of the statute of limitations. Defendant waived her right to raise the statute of limitations as a defense to the amount of restitution ordered. People v. Wilson, 251 P.3d 507 (Colo. App. 2010).

In declaring an order for restitution to be a final civil judgment in favor of the state and any victim, the general assembly intended that the order of restitution would survive defendant's death just as a civil judgment survives the death of a judgment debtor pursuant to § 13-58-101 . People v. Daly, 313 P.3d 571 (Colo. App. 2011).

Thus, the doctrine of abatement ab initio does not apply to civil judgments created by restitution orders. When defendant died after conviction and entry of the order of restitution, but before determination of the direct appeal, the common law doctrine of abatement ab initio applied to defendant's conviction. Because of the importance of protecting the rights of victims, however, the restitution order, which created a civil judgment under subsection (4), was not subject to abatement but could be appealed by defendant's estate. People v. Daly, 313 P.3d 571 (Colo. App. 2011).

When a defendant dies while his criminal conviction is pending on direct appeal, the doctrine of abatement ab initio extinguishes a restitution order entered as part of his sentence. People v. Johnson, 2020 COA 124 , __ P.3d __ (holding contrary to People v. Daly annotated above).

Discharge in bankruptcy does not bar a court from ordering restitution even if discharge occurred prior to filing of charges. People v. Foos, 2016 COA 139 , 409 P.3d 561.

Prosecution's request for supplemental restitution was not barred by the 90-day period prescribed in subsections (1) and (2). The 90-day limitation period only applies to efforts to procure an initial order of restitution. The time period does not apply to efforts to increase a previously entered order of restitution. The determination of supplemental restitution requires the court to consider (1) whether the final amount of restitution due had not been set by the court; and (2) whether any additional losses were known to the judge or the prosecutor at the time the order of restitution was entered. People v. Rockne, 2012 COA 198 , 315 P.3d 172.

Subsections (1)(b) and (2) require the prosecution to determine the amount of restitution within 91 days, unless the court finds there are extenuating circumstances. The sentencing court must then set the final amount of restitution based on the prosecutor's determination. People v. Perez, 2020 COA 83 , __ P.3d __.

The use of the term “known” in subsection (3) is intended to hold the court and the prosecutor to a standard of actual knowledge and not to a standard of constructive knowledge. People v. Rockne, 2012 COA 198 , 315 P.3d 172.

Despite error in amount requested in prosecution's motion for restitution, restitution order was final and losses were “known” to prosecutor at the time of the order. Losses were included in the presentence investigation report and prosecutor had actual knowledge of the amount despite her failure to fully digest the information. People v. McLain, 2016 COA 74 , 411 P.3d 1037.

A district court has the authority to collect restitution after the completion of a deferred sentence and dismissal of the underlying charges. Pineda-Liberato v. People, 2017 CO 95, 403 P.3d 160.

Applied in People v. Turecek, 2012 COA 59 , 280 P.3d 73.


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