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Colorado Criminal Restitution Law – Can A Victim Collect For Future Restitution Unknown At Sentencing?
By H. Michael Steinberg Colorado Violent Crimes Criminal Defense Lawyer
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Colorado Criminal Restitution Law – Can A Victim Collect For Future Restitution Unknown At Sentencing?
Colorado Criminal Restitution Law – Can A Victim Collect For Future Restitution Unknown At Sentencing? There is confusion in the law when it comes to Court orders for restitution when the issue is future lost wages or other kinds of future costs.
To understand the nature of restitution in Colorado – you must start on precisely what restitution is:
In Colorado “restitution” is any pecuniary loss suffered by a victim and includes but is not limited to:
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On the other hand Colorado “restitution” does not include damages for:
- physical or mental pain and suffering,
- the loss of consortium,
- the loss of enjoyment of life,
- the loss of future earnings, or
- punitive damages.
Colorado’s Supplemental Restitution Statute § 18-1.3-603 is the key statute. Section 18-1.3-603 is reprinted in it’s entirety at the end of this article. Understanding an order for restitution is ciritical because the non-payment of restitution can lead to a violation of probation.
A Judge, in a Colorado criminal case, has the authority to reserve the restitution for future losses. That has not always been the case.
Prior to 2000, Colorado the law did not provide a way for a Court to modify an order of restitution once it was ordered and the sentence commenced. Then, in 2000 the Colorado restitution statute was amended – greatly increasing the Judge’s authority to order restitution and to provide for future restitution costs.
What some lawyers view as the “91 day rule” – the period of time Judge’s give to the State to determine the amount of restitution order – does NOT LIMIT that Judge from amending the order to include future restitution costs.
The ninety-day period of limitation applies only to efforts to procure an initial order of restitution and not to efforts to increase a previously entered order for restitution.
The key statute – CRS §18-1.3-603(3) permits an increase in a previously imposed restitution order when:
“the final amount of restitution due has not been set by the court” and the “additional victims or additional losses [were] not known to the judge or the prosecutor at the time the order of restitution was entered.”
Summary Of The State Of The Law Of Restitution As To Future Restitution Damages
An amended order for restitution is not a violation of double jeopardy because the restitution statute 18-1.3-603 authorizes an increase in restitution
The restitution statute authorizes an increase in restitution when a previous restitution order was not final.
The restitution statute requires, however, that neither the prosecution nor the court knew of the additional expenses prior to the amendment.
Neither the statute nor defendant’s double jeopardy rights are violated by an increase in the restitution obligation if the requirements of the statute are followed.
What follows is the statute at issue:
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) 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. 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.
(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
(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.
(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 nonowner 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 – Can A Victim Collect For Future Restitution Unknown At Sentencing?
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”
You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. 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 – Can A Victim Collect For Future Restitution Unknown At Sentencing?
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- Colorado Criminal Law – Your Conscience, A Criminal Charge, And The Decision To Retain A Lawyer
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- Colorado Felony and Misdemeanor Sentencing Chart
- The Colorado Crime of First Degree Kidnapping 18-5-301
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