Restitution in Colorado: An Overview

The Fundamentals of Restitution in Colorado

Restitution law in Colorado has recently undergone several important changes. Some of these changes have come from the legislature, while many others are the result of legal interpretation by Colorado’s appellate courts. Restitution imposes a financial liability that can seriously impact your client, so understanding the fundamentals of restitution in Colorado is essential to providing your client competent representation.

Where are the restitution statutes located?

Primary restitution statutes	§ 18-1.3-601 to -603, C.R.S.
Procedures for the collection of restitution	§ 16-18.5-104 to -113, C.R.S.
Restitution as a condition of probation	§ 18-1.3-205, C.R.S.
Restitution as a condition of parole	§ 17-2-201(5)(c)(I), C.R.S.

What is restitution?

An order of restitution “is a final civil judgment in favor of the state and any victim.” § 18-1.3-603(4)(a)(I), C.R.S. “Restitution” is generally defined as “any pecuniary loss suffered by a victim” and “other losses or injuries proximately caused by an offender’s conduct that can be reasonably calculated and recompensed in money.” § 18-1.3-602(3)(a), C.R.S.

Restitution includes…

• All out-of-pocket expenses
• Interest
• Loss of use of money
• Anticipated future expenses
• Rewards paid by victims
• Money advanced by law enforcement agencies
• Money advanced by a governmental agency for a service animal
• Adjustment expenses

Restitution also includes…

• Losses not specifically mentioned in the statute only if it was proximately caused by the offender’s conduct.
• Expenses to avoid or mitigate the consequences of a specific and ongoing threat related to the offender’s unlawful conduct.

Restitution does not include…

• Damages for physical or mental pain or suffering
• Loss of consortium
• Loss of enjoyment of life
• Loss of future earnings
• Punitive damages

Restitution also does not include…

• A windfall to the victim. People v. Perez, 413 P.3d 266, 271 (Colo. App. 2017).
• A loss or injury not proximately caused by the defendant’s conduct because a third party’s conduct amounts to an independent intervening cause that “destroys the causal connection.” People v. Clay, 74 P.3d 473 (Colo. App. 2003)
• Expenditures resulting from a “generalized feeling of insecurity.” People ex rel. D.W., 232 P.3d 182 (Colo. App. 2009).
• Funds recovered by the victim in a civil proceeding prior to or following the award of restitution must be offset from the restitution order. People v. Hoisington, 902 P.2d 887, 888 (Colo. App. 1995)

Who has to pay restitution?

Do have to pay:

• Anyone convicted of a “felony, misdemeanor, petty, or traffic misdemeanor offense.” § 18-1.3-603(1), C.R.S.
• This obligation exists regardless of the ability to pay. People v. Stovall, 75 P.3d 1165 (Colo. App. 2003).
• Restitution is required as a condition of probation. § 18-1.3-205, and parole, § 17-2-201(5)(c)(I), C.R.S.

Do not have to pay:

• For conduct underlying a charge for which the defendant is acquitted. Cowen v. People, 431 P.3d 215 (Colo. 2018).
• For an offense that is vacated on appeal, reversed on appeal and subsequently dismissed, or reversed on appeal and the defendant is acquitted on retrial; in fact, the defendant is entitled to a refund for any restitution already paid. Nelson v. Colorado, 137 S. Ct. 1249 (2017).
• For offenses barred by the statute of limitations. People v. Davalos, 30 P.3d 841, 845 (Colo. App. 2001), unless a defendant waives this defense by pleading guilty to an offense that falls outside of the statute of limitations, People v. Wilson, 215 P.3d 507 (Colo. App. 2010).
• A person who dies while the direct appeal is pending per the abatement ab initio doctrine. People v. Johnson, 499 P.3d 1045 (Colo. 2021).
• A rare conviction for a “state traffic misdemeanor” issued by a municipal or county court and prosecuted by a special deputy DA. § 18-1.3-603(1)

Who can receive restitution?

Only a person defined as a “victim” is entitled to restitution. Section 18-1.3-602(4)(a), C.R.S., sets forth the definition of “victim” for purposes of restitution. That definition identifies certain classes of people or entities that qualify as victims:

Victim means any person aggrieved by the conduct of an offender and includes, but is not limited to:

• The direct victim of the offense
• Any person harmed by the offender’s criminal conduct
• A parent, spouse, child, legal guardian of a deceased or minor victim
• An insurance company (maybe)
• A victim compensation board
• The definition of “victim” can also include corporations and other legal entities. People v. Webb-Johnson, 113 P.3d 1253 (Colo. App. 2005).

Governmental agency expenses are not typically eligible for recovery under the restitution statute absent an express legislative authorization unless the underlying criminal statute encompasses the agency as a primary victim. People v. Padilla-Lopez, 279 P.3d 651 (Colo. 2012). Such statutory authorizations include:

• Money advanced by law enforcement agency
• Money advanced by governmental agency for a service animal
• Meth lab clean up, storage, and testing
• Government agency/insurer that provides health and medical benefits or non-medical support services, such as costs incurred by Medicaid.
• Extraordinary direct public investigative costs, including…
  • SANE exams. Teague v. People, 395 P.3d 782 (Colo. 2017).
  • Police property damaged in a foreseeable chain of events. DueBois v. People, 211 P.3d 41 (Colo. 2009); but not
  • The costs to DHS associated with the care and placement of a victim of child abuse. People v. Padilla-Lopez, 279 P.3d 651 (Colo. 2012).

When is restitution determined?

The obligation to pay restitution must be determined…

• at sentencing when the judgment of conviction enters. § 18-1.3-603(1)(a)-(d).
• Failure to determine the obligation to pay restitution when the judgment of conviction enters results in an illegal sentence. People v. Martinez-Chavez, 463 P.3d 339 (Colo. App. 2020).

If restitution is ordered, the amount of restitution must be determined…

• at sentencing; or,
• within 91 days of sentencing, § 18-1.3-603(1)(b); or,
• for a period of time after 91 days but only if the court expressly finds good cause extenuating circumstances before expiration of the 91 day-deadline. People v. Roddy, 498 P.3d 136 (Colo. 2021).
• Failure to determine the amount of restitution within the 91-day statutory deadline or good-cause deadline results in the court losing its authority to impose any amount of restitution. People v. Weeks, 498 P.3d 142 (Colo. 2021).

How is the obligation to pay restitution determined?

Section 18-1.3-603(2) of the Colorado Criminal Code sets forth the procedure for determining restitution:

• The court’s order shall be based on information presented by the DA.
• The DA must compile the information from victim impact statements and other sources.
• DA must give notice to the court before the order of conviction or within ninety-one days (or good-cause deadline), if it is not available before the order of conviction.
• The DA’s notice must state the amount of restitution requested and identify the victims.
• If requested, the defendant has a right to a restitution hearing. People v. Martinez-Chavez, 463 P.3d 339 (Colo. App. 2020).
• If a hearing or motions are required to enable the court to determine whether the defendant is obligated to pay restitution, then the sentencing hearing should be continued until the issue is resolved. People v. Weeks, 498 P.3d 142 (Colo. 2021).

Who has the burden of proof?

The prosecution has the burden to prove (by a preponderance of the evidence):

• The amount of restitution owed, and
• That the victim’s posses were proximately caused by the defendant. People v. Henson, 307 P.3d 1135 (Colo. App. 2013).

The defense has the burden to prove (by a preponderance of the evidence):

• Any amount that should be offset from the amount of restitution ordered. People v. Lassek, 122 P.3d 1029, 1035 (Colo. App. 2005).

Who can receive restitution?

Only a person defined as a “victim” is entitled to restitution. Section 18-1.3-602(4)(a), C.R.S., sets forth the definition of “victim” for purposes of restitution. That definition identifies certain classes of people or entities that qualify as victims:

• The direct victim of the offense
• Any person harmed by the offender’s criminal conduct
• A parent, spouse, child, legal guardian of a deceased or minor victim
• An insurance company (probably)
• A victim compensation board
• The definition of “victim” can also include corporations and other legal entities. People v. Webb-Johnson, 113 P.3d 1253 (Colo. App. 2005).

Governmental agency expenses are not typically eligible for recovery under the restitution statute absent an express legislative authorization unless the underlying criminal statute encompasses the agency as a primary victim. People v. Padilla-Lopez, 279 P.3d 651 (Colo. 2012). Such statutory authorizations include:

• Money advanced by law enforcement agency
• Money advanced by governmental agency for a service animal
• Meth lab clean up, storage, and testing
• Government agency/insurer that provides health and medical benefits or non-medical support services, such as costs incurred by Medicaid.
• Extraordinary direct public investigative costs, including…
  • SANE exams. Teague v. People, 395 P.3d 782 (Colo. 2017).
  • Police property damaged in a foreseeable chain of events. DueBois v. People, 211 P.3d 41 (Colo. 2009).
• But not the costs to DHS associated with the care and placement of a victim of child abuse. People v. Padilla-Lopez, 279 P.3d 651 (Colo. 2012).

How is the amount of restitution calculated?

Calculating the actual “pecuniary loss” that a defendant is obligated to pay as restitution is not an exact science. For the most part, the defendant will be obligated to pay restitution in an amount that is not speculative, Cumhuriyet v. People, 615 P.2d 726 (Colo. 1980), and is reasonable to make the victim whole to the extent practicable, People v. Stafford, 93 P.3d 572 (Colo. App. 2004). Thus, depending on the circumstances, restitution may be calculated using any of the following metrics:

• Fair market valuation. People v. Brigner, 978 P.2d 163 (Colo. App. 1999).
• Repair cost valuation, People v. Courtney, 868 P.2d 1126 (Colo. App. 1993), even if the repair costs exceed the damaged object’s value, People v. Henson, 307 P.3d 1135, 1139 (Colo. App. 2013).
• Replacement valuation (for items “not readily replacement at a fair market value cost”). People v. Stafford, 93 P.3d 572, 575-76 (Colo. App. 2004)
• Stipulated valuation, including a lesser amount of restitution so long as it is agreed upon by the prosecutor, the victim, and the defendant. § 18-1.3-603(3)(b)(I).

How is restitution appealed?

The single most important thing to know about appealing restitution is that the amount of restitution is not required for a final judgment of conviction. Sanoff v. People, 187 P.3d 576, 578 (Colo. 2008).  The practical effect of Sanoff being that, depending on how much time will elapse after sentencing before the final restitution order enters and whether the defendant also wants to appeal the judgment of conviction, the defense must:

• File an extension of time to file a notice of appeal per Colorado Appellate Rule 4(b)(3) for a period of time not to exceed 35 days after the expiration of the 49-day deadline to file a notice of appeal.
• This option is for when the defense wants to appeal both the judgment of conviction and restitution and the restitution order will be finalized within 84 days of sentencing.
• File a separate notice of appeal for a restitution order within 49 days of entry of that order per Colorado Appellate Rule 4(b)(1).
• This option is for when the defense either wants to appeal both the judgment of conviction and restitution and the restitution order will not be finalized within 84 days of sentencing, or when the defense only wants to appeal restitution and not the judgment of conviction.
• File an untimely notice of appeal (if no appeal has been perfected already) or an untimely amended notice of appeal (if an appeal has already been perfected) seeking to appeal restitution based on a motion establishing “good cause” per Colorado Appellate Rule 26(b).
• This option is for when the failure to timely appeal restitution results from, for example, ineffective assistance of counsel. See, e.g., People v. Baker, 104 P.3d 893 (Colo. 2005).
• File a post-conviction motion per Colorado Rule of Criminal Procedure 35(a) seeking to correct a sentence “not authorized by law” or “imposed without jurisdiction.” People v. Suttmiller, 240 P.3d 504 (Colo. App. 2010).
• This option may be available when the court ordered restitution that was not authorized by statute, or where the court lacked authority to impose the restitution because, for example, the 91-day statutory deadline had already elapsed without any express finding of good cause extending it.
• But beware. It is advisable to consult with an experienced appellate attorney before filing such a motion because there are numerous fine distinctions relating to the characterization of such claims that affect both the timeliness of the motion, but also the nature of such a motion such that ignorance could result in forfeiture of important appellate remedies. See, e.g., People v. Knoeppchen, 459 P.3d 679 (Colo. App. 2019).

Effect of reversal, abatement, expungement, and sealing.

When a conviction is reversed and a case is remanded for a new trial, any restitution order imposed in connection with the conviction must be vacated pending the outcome of the new trial. People v. Scearce, 87 P.3d 228, 235 (Colo. App. 2003).

If a defendant’s conviction is vacated, reversed and the charge is dismissed, or reversed and the defendant is acquitted upon retrial, then the defendant is entitled to a refund of restitution already paid. Nelson v. Colorado, 137 S. Ct. 1249 (2017).

If defendant dies while a direct appeal is pending and the conviction is abated ab initio, the restitution order is vacated. People v. Johnson, 499 P.3d 1045 (Colo. 2021).

A restitution order remains in effect even in the event that a conviction is expunged or sealed (and notwithstanding termination of a deferred judgment, sentence, or adjudication). § 16-18.5-111, C.R.S.

If you have questions or need help with a restitution issue in your case, please reach out to the attorneys at 2nd Chair / Meilstrup & Brown for help. info@meilstrupbrown.com