Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
In this case, the Colorado Supreme Court examined the deadline in subsection 1(b) of the restitution statute, which is “not a paragon of clarity,” Justice Carlos Samour said in the court’s opinion. The statute says the amount of restitution must be determined within 91 days of conviction unless there is good cause for extending it. However, courts have disagreed on what needs to happen by the deadline.
The justices concluded the deadline applies to the court’s determination of the amount of restitution to pay, rather than the prosecution’s determination of proposed restitution.
The prosecution has its own deadline, which requires it to file the amount of the proposed restitution before the judgment of conviction or, if the information is not yet available, no later than 91 days after the judgment of conviction.
According to the court’s opinion, neither deadline may be extended without an express finding. For the prosecution to extend its deadline, the court must find, prior to the deadline, that there are extenuating circumstances affecting the prosecution’s ability to determine the proposed amount of restitution. Likewise, the court’s deadline may only be extended if the court expressly finds good cause for doing so and makes this finding before the deadline.
In the case of Benjamin Weeks, the court determined the amount of restitution almost a year after the judgment of conviction and did so without making an express and timely finding of good cause to extend the 91-day deadline.
At Weeks’ sentencing hearing about a month after his conviction for robbery and menacing, the prosecution asked that the issue of restitution “remain open” and informed the court it would be seeking restitution but hadn’t filed a motion yet. The court granted this request. Nine days later, the prosecutor filed a motion requesting the court enter an “interim” amount of about $524.
More than eight months after the sentencing hearing, Weeks filed a motion for a hearing on restitution. At the hearing, the prosecution said it was seeking $524 in restitution. Weeks objected, arguing the court no longer had the authority to require him to pay since the statute’s 91-day deadline had expired. Nearly a year after Weeks’ sentencing hearing, the court granted the prosecution’s motion for restitution.
Weeks appealed, and a split panel of the Court of Appeals concluded the trial court lacked authority to enter the restitution order because it had not determined the restitution amount within 91 days of conviction nor had it found good cause to extend the deadline. The Colorado Supreme Court agreed with the Court of Appeals and affirmed that court’s decision to vacate Weeks’ restitution order.
Jonathan Roddy was charged with stalking and a computer crime after entering his ex-wife’s house and taking photographs he intended to exploit in their domestic relations dispute. He pleaded guilty to an added count of first-degree criminal trespass as part of a plea agreement to dismiss the original charges and receive a two-year deferred judgment and sentence.
The plea agreement didn’t mention restitution. But in the joint motion for deferred judgment, Roddy said he had the funds to pay restitution and fees and acknowledged that failure to pay would be evidence of a violation of the deferred sentence and judgment.
The trial court accepted the agreement and gave the prosecution 91 days to determine restitution. On the 90th day, the prosecution filed a motion for restitution for nearly $400,000, which included the ex-wife’s legal fees for the firm handling her domestic relations case as well as the firm handling the criminal case. The prosecution later increased the request as costs and fees continued to rise.
More than a year after accepting Roddy’s guilty plea, the court ordered Roddy to pay $688,535. Roddy appealed, arguing the order was untimely and included losses caused by conduct related to the dismissed charges as well as the charge to which he pleaded guilty.
A division of the Court of Appeals reversed the restitution order, finding the lower court erred by including losses not proximately caused by Roddy’s trespass onto his ex-wife’s property. However, the division did not object to the timing of the order.
The prosecution appealed and asked the Colorado Supreme Court to clarify whether restitution may be based on charged conduct that has been dismissed as part of a plea agreement. The high court concluded it couldn’t unless the defendant agreed otherwise when entering the plea agreement.
The Colorado Supreme Court also considered whether the 91-day deadline in the restitution statute applies to the court’s entry of a restitution order or the prosecution’s determination of proposed restitution. Applying Monday’s decision in Weeks, the justices concluded the deadline applied to the court’s restitution order.