Colorado Criminal Restitution Law – A Continuing Right To Increase The Amount?
By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney
Colorado Criminal Restitution Law – A Continuing Right To Increase The Amount? – One of the most confusing aspects of any Colorado criminal case is the order to pay restitution. This article addresses the procedure underlying how the order for the amount of restitution is determined under the law and, most importanly how that order is made final.
Under Colorado law, in almost every case, (see law below) if restitution is owed to a victim, the Order of conviction must include the specific amount of restitution to be paid by the Defendant OR a requirement that the defendant pay an amount of restitution to be determined within ninety-one days of entry of the order of conviction, unless good cause is shown for extending the deadline. § 18-1.3-603(1)(a) & (b)
Some Foundational Colorado Laws Regarding Restitution in Colorado Criminal Cases
In a Colorado criminal case if restitution is owed it must be ordered.
A restitution Final Order entered by a Colorado Trial Court after a conviction must indicate one of the following four things:
1. The specific amount of restitution the Defendant owes;
2. The Final Order to pay restitution should be delayed to determine the specific amount owed but – for most cases – the specific amount must be calculated within 91 days of the Order being entered;
3. In special, exceptional cases, the Final Order to pay restitution can provide for a Defendant to pay the actual costs of specific future costs for the victim of the crime; or
4. The Final Order regarding restitution by the Trial Court may make a specific finding that the victim of the crime did not suffer a monetary loss and, therefore, no restitution is owed by the Defendant.
C.R.S. § 18-1.3-603.
Can A Colorado Order For Restitution In Criminal Cases Exceed The 91 Day Deadline?
Under Colorado law the specific amount of restitution owed by a Colorado criminal Defendant does not have to be known or entered at the time of conviction and sentencing. The law allows a Court to extend the detailed Order for restitution for 91 days for to determine the amount of restitution which law also provides for a contested HEARING for the Defendant to challenge the amount of restitution sought by the District Attorney.
While the Court must order restitution when it enters a judgment of conviction in a Colorado criminal case by entering an Order for Restitution, a Colorado criminal Defendant has the right to a hearing at which the prosecutor must prove by a preponderance of the evidence that the defendant is liable for the victim’s losses in the amount claimed.
Good Cause To Extend The 91 Day Deadline
It is noted that for “good cause” shown, the 91 day deadline can be enlarged to determine the final amount of restitution. Section C.R.S. § 18-1.3-603(1)(b)
Can The Final Restitution Order Be Increased For Future Damages Incurred By The Victim As A Result of Continued Ongoing Expenses?
Colorado law permits an ongoing obligation for restitution in the event that a victim has ongoing expenses such as medical costs.
Here is the specific section of the law – that permits this ongoing obligation: Section C.R.S. § 18-1.3-603 (3).
Limits On An Increase In The Amount Of Restitution Based On The Principles Of Double Jeopardy
Restitution is clearly a mandatory part of a Defendant’s criminal sentence, BUT once a final sentence is imposed and the Defendant has begun serving it, an increase in the amount of restitution ordered violates the constitutional prohibition against double jeopardy.
But while the law guarantees a Colorado criminal Defendant a “legitimate expectation of finality in the sentence,” the sentence may be increased without violating double jeopardy rules IF a final restitution obligation has not been set by the court and additional losses not known to the court or the prosecutor at the time the initial order was issued are later discovered.
When Does A Colorado Restitution Order Become “Final” For The Purposes Of Double Jeopardy?
In a word, as long as a Defendant is “on notice” that the amount of restitution is not “final” the principles of Double Jeopardy do not apply. A Colorado Order for restituton is considered final when “it has reached an end-point, ‘precluding further controversy,’ and ‘leaving nothing further for the court to do.’”
Therefore, an original Order for restitution does not “foreclose the possibility of further restitution” where a Colorado Trial Court makes clear on the record that restitution is ongoing – for example where a victim’s medical expenses had not been resolved, a restitution order can be “kept open” by a Prosecutor’s office for the purposes of requesting a supplemental restitution award.
But, under Section 18-1.3-603(3)(a), principles of Double Jeopardy DO apply in that a Colorado Prosecutor may not seek supplemental restitution if additional losses to a victim are known to him or her at the time the original restitution Order is entered.
The Complete Colorado Restitution Statute (2018)
18-1.3-603. Assessment of restitution – corrective orders
(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:
(a) An order of a specific amount of restitution be paid by the defendant;
(b) 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;
(c) 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
(d) 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:
(a) 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
(b) Decreased:
(I) With the consent of the prosecuting attorney and the victim or victims to whom the restitution is owed; or
(II) If the defendant has otherwise compensated the victim or victims for the pecuniary losses suffered.
(4) (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.
(II) 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.
(b) Any order for restitution made pursuant to this section is also an order that:
(I) The defendant owes simple interest from the date of the entry of the order at the rate of eight percent per annum; and
(II) The defendant owes all reasonable and necessary attorney fees and costs incurred in collecting such order due to the defendant’s nonpayment.
(c) 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.
(d) 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.
(e) 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.
(5) 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.
(6) 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.
(7) 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.
(8) (a) 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.
(b) 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:
(I) A complying policy of insurance or certificate of self-insurance as required by the laws of this state;
(II) 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
(III) Any other insurance or indemnity agreement that would indemnify the defendant for any damages sustained by the victim.
(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.
(II) (A) A court may award a victim restitution for a deductible amount under his or her policy of insurance
(II) Nothing in this paragraph (d) shall prohibit a non owner 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.
(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.
(II) 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.
(f) 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.
(g) 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.
(9) 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.
(10) (a) 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.
(b) The amount of assistance provided is established by either:
(I) A list of the amount of money paid to each provider; or
(II) 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:
(A) Medical and dental expenses;
(B) Funeral or burial expenses;
(C) Mental health counseling;
(D) Wage or support losses; or
(E) Other expenses.
(c) 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.
Colorado Criminal Restitution Law – A Continuing Right To Increase The Amount?
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The contents of this article are based upon my research, my personal experience and my personal analysis and opinions developed from my thirty six years (as of 2017) of criminal trial experience from both sides of the courtroom – as a former career prosecutor for Arapahoe and Douglas Counties (13 years) and as the owner of my own Criminal Defense Law Firm since 1999 (18 years).
The reader is also admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.
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H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Restitution Law – A Continuing Right To Increase The Amount?
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