Restitution Laws In Colorado I of III
The Colorado Restitution Law and Analysis by Colorado Criminal Defense Lawyer – H. Michael Steinberg
Introduction – The idea behind this type of web page article is to analyze the actual restitution statute in Colorado – paragraph by relevant paragraph with the analysis intended to help the reader understand the law.
Colorado Law You Can Use – Restitution Law
Here is the Actual Law In Colorado on Restitution Orders – With Analysis
§ 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.
HMS – This makes restitution MANDATORY in Colorado in every kind of case – at every level… a judge does NOT have the authority to refuse to order 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.
HMS – The above paragraph outlines what must be included in the order for restitution. It also makes mandatory that the DA has no more than 91 days following the order of conviction (which follows sentencing) to determine the amount of restitution. The only extension must be based solidly on good cause. But this is NOT jurisdictional – under a new 2012 law – the Colorado State legislature leaves open modifications of the amount and nature of restitution.
Further – the order must be specific as to each victim – and the reason for the order for restitution- it cannot be vague or speculative.
(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.
HMS – The restitution order is based upon information provided by the DA which determines the amount of restitution and the names of the victims – within the 91 day period unless there are “extenuating circumstances” that affect the DA’s ability to make this determination.
(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
(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.
HMS – This is an important section..because is permits the judge – upon an agreement of the parties settling on an amount of restitution – to agree to a lesser amount than might be owing on paper. It also allows for credits as against the restitution figure based on “other compensation” made to the victim of the crime.
HMS – The following section also has several critical components:
(4)(a) Any order for restitution entered pursuant to this section shall be a final civil judgment in favor of the state and any victim. Notwithstanding any other civil or criminal statute or rule, any such judgment shall remain in force until the restitution is paid in full.
HMS – This creates a right of the victim to collect a judgement using the civil law – thus putting an order in a criminal case on an even keel with a civil jury or judge based order for money damages.
(b) Any order for restitution made pursuant to this section shall also be deemed to order that:
(I) The defendant owes interest from the date of the entry of the order at the rate of twelve percent per annum; and
HMS – This ridiculous provision has NOT KEPT UP ( or more appropriately – DOWN) with the current interest rates – and permits a victim to charge 12% interest on the unpaid balance of a restitution order from the date of the order and ALSO 8% from the date of the crime…called “pre-judgement” interest.
I am leaving the old paragraph in for comparison purposes:
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, __ P.3d __ (Colo. App. 2011).
(II) The defendant owes all reasonable and necessary attorney fees and costs incurred in collecting such order due to the defendant’s nonpayment.
HMS – This provision compels the payment of attorney’s fees expended to collect the order for restitution.
(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.
HMS – Here the restitution order can used – as in civil cases – to attach to a defendant’s 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.
HMS – This law prevents – as is already the case under Federal Law – the defendant from discharging a restitution order in a bankruptcy case.
(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.
HMS – This quiet law – means that if one co-defendant dies – or cannot pay restitution in a case – the victim has the right to collect the entire amount from the remaining co-defendant or 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.
HMS – Here – victims are NOT ALLOWED to double collect from other sources of damages and also the defendant.. Such as an insurance payout.
(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.
HMS – This law permits judges to order governmental records or private record keepers to “fix” fraudulent entries in these records such as result in identity theft cases.
HMS – ALL of the following provisions are self explanatory – and deal with the IMPACT OF INSURANCE COVERAGE on criminal restitution orders.. This entire section was influenced and then added in 2003 by the insurance lobby.
(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.
Judges Have Enormous Power and Discretion In Ordering Restitution
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. People v. Reyes, 166 P.3d 301 (Colo. App. 2007).
§ 18-1.3-205. Restitution as a condition of probation
As a condition of every sentence to probation, the court shall order that the defendant make full restitution pursuant to the provisions of part 6 of this article and article 18.5 of title 16, C.R.S. Such order shall require the defendant to make restitution within a period of time specified by the court. Such restitution shall be ordered by the court as a condition of probation
Cite as C.R.S § 18-1.3-603
Restitution Laws In Colorado – Part I of III
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