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Restitution Laws In Colorado* – Part III of III

Colorado Restitution Law and Analysis by Colorado Criminal Defense Lawyer – H. Michael Steinberg

Restitution is Mandatory In Colorado

Colorado law requires a sentencing court to include consideration of restitution when imposing a sentence or approving a deferred judgment and sentence. Imposing restitution on criminal defendants is supported by theories of rehabilitation and deterrence, as well as an effort “to make the victim whole” to the extent practicable and “to take the profit out of crime.”

Liberally Construed – Means – Find A Way To Impose and Collect It

The Colorado legislature expressed its intention that statutory provisions concerning restitution should be liberally construed in favor of the victims of crime and their immediate families.

Unless the sentencing court makes a specific finding that no victim of the offense suffered a pecuniary loss, the court is required to order a defendant to make restitution in all cases involving a conviction of a felony, misdemeanor, petty, or misdemeanor traffic offense where a “victim” sustains a pecuniary loss due to a defendant’s criminal conduct.

If There Is A Conviction Restitution Is Ordered

The legal tern conviction is very broad here

Conviction” means a verdict of guilty, a plea of guilty or nolo contendere, or receiving a deferred judgment and sentence. Restitution is required to be part of any sentence to probation or incarceration and is made a condition of parole. Defendants who have caused the same pecuniary loss are jointly and severally liable for restitution payments… which means if one does not pay his or her full share – the others pick up that share. 

Who Receives Restitution? – The “Victim” – Includes INDIRECT Victims

In 1996, the Colorado legislature broadened the definition of the term “victim” so that the term included, among others, “any person aggrieved by a defendant.” This change encompassed not only the immediate and direct victim of the offense, but also the victim’s immediate family members, such as a spouse or child. Also added to the definition was any victim compensation board that had paid a victim compensation claim, as well as any person or entity that suffered a loss because of a contractual obligation with the victim, such as an insurer.

Under the 2000 legislation, the term “victim” for restitution purposes incorporates elements of the existing law as well as additional categories, and now includes:

(1) persons against whom any felony, misdemeanor, petty, or traffic misdemeanor offense has been attempted or committed;

(2) persons who are harmed by criminal conduct in the course of a scheme, conspiracy, or pattern of criminal behavior;

(3) persons suffering losses because of a contractual obligation with the victim or an insurer who reimburses the immediate victim of the loss;

and

(4) a victim compensation board that has paid a victim compensation claim.

Expanded The Persons Who Pay Restitution –

The statute excludes any person accountable for the criminal conduct or episode as principal, complicitor, or conspirator.

Restitution Is Not Limited To The NAMED Victim In The Case… ( it can be a secondary party hurt by the Defendant’s conduct)

There is no requirement in the statute that a person or entity be named as a victim in the charging documents to be eligible to recover restitution, provided that the person or entity is immediately or directly aggrieved by the defendant’s criminal act.

For example, in one case, a defendant was ordered to pay restitution for injuries sustained by both a husband and wife when the defendant rear-ended their van, even though the wife was the only named victim in the charging document.

Insurance Companies Collect on Their Pay Outs To Their Insureds Who Are Victims

An insurer is entitled to recover as restitution its payments to victims of a defendant’s criminal conduct that are paid pursuant to its contractual obligations. The defendant is required to pay the full amount of bills paid by an insurance company under its policy with a person injured by the defendant’s criminal act, not simply the deductible that the policyholder paid to the company.

If a victim is deceased or incapacitated, various specified family members or lawful representatives may recover restitution.  If the victim cannot be found or declines to accept restitution, or if restitution is unclaimed, the defendant nonetheless must pay restitution to the state and distribute as provided by statute.

How To Determine The Amount of The Victim’s Pecuniary Loss

Prior law spoke of “actual damages sustained” by the victim but did not statutorily define the term “restitution.” The 2001 law:

(1) defines the term in an effort to provide direction on what kinds of losses are included,

and

(2) provides that the amount of restitution that a court may order is equal to the full amount of a victim’s “actual pecuniary loss.”

The court can approve a lesser amount agreed on by the prosecutor, the victim, and the defendant.

The NEW 2012 Re-Enactment Of Colorado’s Restitution Law

In 2012 – the Colorado State Legislature REWROTE the law on how restitution is ordered. The new law ( hit this link for analysis ) is found in  C.R.S § 18-1.3-603

The Ability To Pay IS NOT A Consideration – Only The Monthly Amount To Be Ordered Is Taken Into Consideration

A court may not consider the defendant’s inability to pay restitution when establishing the amount to be paid. The 2001 law establishes that courts may take into consideration the rate at which defendants can pay off restitution and that restitution orders clearly are “lifelong” obligations of defendants to satisfy whether or not the defendants have otherwise completed their sentence.

Restitution now means any pecuniary loss suffered by a victim and includes, but is not limited to:

(1) all out-of-pocket expenses, interest, loss of use of money, or anticipated future expenses;

(2) rewards paid by victims;

(3) money advanced by law enforcement agencies;

(4) adjustment expenses;

and

(5) other losses or injuries proximately caused by an offender’s conduct that can be reasonably calculated and recompensed in money.

Restitution also may include any “extraordinary” direct public and all private investigative costs.

Pecuniary losses include obvious losses, such as the value of stolen or destroyed property, but they also may include incidental costs.

How Is Restitution Calculated?

The following may serve as proper elements in the restitution calculation:

(1) award of interest, if actually paid out by the victim;

(2) cost of counseling for a victim and the victim’s family;

(3) expenses, including attorney fees incurred by a victim in attempting to recover stolen property;

or

(4) the value of the time spent by a corporate victim’s employees cooperating with the police and prosecutor.

Restitution INCLUDES DISMISSED CHARGES

A court may order a defendant to pay restitution to an alleged victim for actual pecuniary losses resulting from the defendant’s uncharged criminal conduct or when alleged in dismissed counts, provided that the defendant is given the opportunity to contest the court’s determinations on these matters.

But Not If Barred By The Statute Of Limitations

The statute of limitations applies to restitution orders and a court cannot order restitution as to criminal acts for which prosecution is barred by the statute of limitations.

In fixing the amount of restitution, the sentencing court is not bound by the strict rules of civil damages. In determining the actual pecuniary loss, the court is not necessarily limited to a fair-market valuation determination, provided the record supports a finding that an alternate valuation is reasonable to make the victim whole to the extent practicable.

NO COMPARATIVE NEGLIGENCE SET OFF As Occurs In Civil Cases For Money Damages

Restitution is not subject to reduction in light of a victim’s comparative negligence or comparative fault.

This is important … a victim’s full pecuniary loss is not subject to reduction based on the victim’s alleged provocative conduct giving rise to heat of passion mitigating the class of defendant’s offense.

A court may order restitution even when a civil claim for damages by the victim against the defendant is contemplated or pending, and a release from civil liability does not limit a criminal court’s authority to order restitution equivalent to actual pecuniary damages.

BUT the court must subtract from the actual pecuniary loss the amount of any payment attributable to those damages that are received by the victim from the settlement of a civil claim asserted by the victim against the defendant. AND a defendant is entitled to a set-off against any amount later recovered as compensatory damages by a victim in a legal proceeding.

Restitution is a criminal penalty, and courts may not substitute it for a civil action for damages. The court has authority to order restitution only for pecuniary losses that result from the defendant’s criminal conduct.

CIVIL RELEASE Does Not Limit Criminal Restitution

A release from civil liability does not necessarily limit a criminal court’s authority to order restitution equivalent to actual pecuniary losses, although an order for restitution may be decreased if the defendant has otherwise compensated the victim.

HOW LONG Does The DA Have to Assess Restitution?

The sentencing court determines the amount of restitution that a defendant must pay, and endorses the amount of restitution on the record. The specific amount of restitution must be determined when the order of conviction is entered or within ninety ONE days immediately following the order of conviction, unless that time period is extended by the court.

The order may obligate a defendant to pay for a victim’s costs of specific future treatment proximately caused by the defendant’s conduct. Further, a restitution order can be modified if additional victims or losses not known to the judge or the prosecutor at the time or the order of restitution was entered are later discovered, but only if the final amount of restitution due has not been set by the court.

The DA Must PROVE The Amount Of Restitution That Is Due

The prosecutor has the burden of proving the amount of restitution and that the defendant was responsible for the pecuniary loss. The prosecutor must compile the information using victim impact statements or other means, such as testimony at trial, or through statements by a probation officer or victim at the sentencing hearing. A defendant must be given adequate notice of restitution claims to be able to contest liability.

The Defendant Must Attack The Amount of Restitution Objecting To It Or There Is A WAIVER of the Right To Object

A defendant’s failure to present evidence contesting the matter may result in a waiver of an objection to the amount of restitution. In addition, a defendant can appeal a restitution order pursuant to procedures applicable to the appellate review of a sentence.

What Happens If I Fail To Pay The Restitution Order?

Restitution is due and payable at the time that the order of conviction is entered. If the defendant cannot pay the full amount of restitution at the time the order is entered, a “collections investigator” is to establish a payment schedule to monitor and collect the money owed. The collections investigator may modify the payment schedule and institute collection procedures.

In felony cases in which the defendant is sentenced to prison, the Colorado Department of Corrections performs these functions. For persons sentenced to community corrections, the community corrections program is authorized to establish a restitution payment schedule.

If restitution is not paid at the time a restitution order is entered, the defendant is assessed an additional one-time fee of $25, payable after the defendant has satisfied all orders for restitution. In addition, a defendant may be assessed a $10 late fee on each late payment. These fees may be waived due to a defendant’s indigency.

INTEREST On The Unpaid Restitution Order

Interest is owed at the rate of 12 percent per annum, and courts are authorized to require a defendant to provide security for the payment of restitution, for example, requiring a defendant to execute a promissory note and deed of trust.

WHEN Is Restitution Due? – How Fast?

Prior to 2000, restitution ordered as a condition of probation was to be paid within twelve months, regardless of the amount owed. Under the new legislation, defendants are to make restitution within a period of time specified by the court. Failure to pay restitution that is ordered as a condition of probation can result in the court modifying, extending, or revoking probation, including imposing work-release program sentences or finding defendants in contempt of court.

Revocations Of Probation Or Parole – For NOT PAYING RESTITUTION

Before any punishment can be imposed and actions taken, it must be shown that the defendants had the financial ability to make the payments owed when they were due. However, the mere fact of non-payment constitutes prima facie evidence of a violation of an order to pay restitution. In that situation, the burden falls on the defendants to prove by a preponderance of the evidence that they are unable to make restitution payments as they became due.

Revocation and punitive proceedings must be instituted before the term of probation has expired. Otherwise, the trial court lacks jurisdiction to revoke probation for failure to pay restitution.

For example, in People v. Gore the Colorado Supreme Court held that, absent a timely request to extend probation, the trial court lacked jurisdiction to revoke probation where the defendant’s restitution check was returned for insufficient funds seven days after expiration of the probationary period and where no revocation request was filed before the period of probation ran.

Restitution required as a condition of parole must be paid within the period of time that the defendant is on parole. If not timely paid, the restitution may be subject to collection processes and the board may extend the period of parole (subject to statutory limitations) or revoke the parole. The new legislation also clarifies the procedures available to victims in enforcing the order. Restitution orders are enforceable in the same manner as a final judgment in a civil matter, including the recovery of reasonable attorney fees and costs, among other ways.

When a defendant fails to pay restitution, the court or a victim may commence collection, including the use of lawyers and collection agencies, with a fee cap of 25 percent that is added to the amount of restitution due. The court also may order attachment of up to 50 percent of the defendant’s “earnings” to be applied to past due restitution. Collection procedures include the recording of a lien against the defendant’s real or personal property, including motor vehicles. During any period of time that a defendant is incarcerated as a state prisoner, the superintendent of the facility may direct that a portion of the defendant’s wages or compensation earned in work programs be applied to any unpaid restitution.

What Is The Impact Of A Personal Bankruptcy? NO DISCHARGE Of Criminal Restitution Order

In Kelly v. Robinson, the U.S. Supreme Court held that restitution obligations imposed on criminal defendants as a condition of probation in state criminal proceedings were not subject to discharge in proceedings under Chapter 7 of the Bankruptcy Code (“Code”). In 1990, Congress passed legislation amending the Code, making criminal restitution obligations non-dischargeable in Chapter 13 proceedings as well. The Colorado legislation specifically provides that restitution obligations are a debt for “willful and malicious” injury for purposes of exceptions to discharge in bankruptcy as provided in 11 U.S.C. § 523.92

Colorado Restitution in Juvenile Cases

The juvenile code contains specific statutory provisions authorizing courts to impose restitution obligations on juvenile offenders in juvenile proceedings. Prior to September 1, 2000, these statutes exempted juveniles for whom restitution would cause serious hardship or injustice.

Effective September 1, 2000, as with adult offenders, juvenile offenders must pay restitution in a reasonable manner regardless of their circumstances. These restitution orders are made subject to the collection provisions of CRS Title 16 Article 18.5.93

Parents Liable For Their Children’s Restitution?

Parental liability was raised in 2000 from $3,500 to $25,000 for damages caused by a juvenile’s delinquent act. However, this obligation may be absolved on a court finding that the guardian, legal guardian, or parent “has made diligent, good faith efforts to prevent or discourage the juvenile from engaging in delinquent activity.”

*Moch Of The Credit for this THIRD PART of the Restitution Law in Colorado Criminal Cases series – is attributable to a copyrighted article by famous Colorado Lawyer and Law Professor Robert J. Dieter.  The above is a summary and shortened analysis with 2012 updates to the original article appearing in The Colorado Lawyer magazine in 2001. … also the Q and A format is used where appropriate.

 


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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