The Fundamentals of Restitution in Colorado

By Britta Kruse, Senior Appellate Counsel at 2nd-Chair 

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.

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)

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).

Reach out to 2nd-chair for more information on how restitution is determined, who can receive restitution, who has the burden of proof, how restitution is calculated, and how to appeal a restitution determination.

 

 

Kelly Meilstrup