BRILLIANT. BOLD. EFFECTIVE.
Applicability of Restitution in Colorado Criminal Cases
Restitution, generally speaking, is the principle that a party who causes injury to another should have to reimburse the injured party for the damages and injuries the party incurred. Put simply, the purpose of restitution is to place an injured party back in the position they otherwise would have been had the injury not occurred in the first place.
With respect to criminal cases, many states require a defendant who has been convicted of a criminal offense to pay restitution to any victims that were harmed as result of the defendant’s criminal conduct. For example, if a defendant is convicted of assault, he will be responsible for paying any medical costs or expenses the victim incurred as a result of the assault. Similarly, if a defendant steals or destroys another person’s property, the defendant will have to reimburse that person for the value of the property.
Notably, Colorado is a state that requires criminal restitution and has adopted a statutory scheme governing how restitution is assessed and ordered. See Colorado Revised Statutes (“C.R.S.”) § 18-1.3-601, et seq.
Requirements of Restitution in Colorado Criminal Cases
In particular, the specific Colorado statute governing restitution in Colorado criminal cases is C.R.S. § 18-1.3-603. Under that statute, restitution must be ordered for convictions in criminal cases where the offense committed is a:
– Petty offense; or
– Misdemeanor traffic offenses.
See C.R.S. § 18-1.3.603(1). Notably, traffic infractions are not subject to a restitution order.
Further, a conviction is defined to include both guilty verdicts, where a defendant has been brought to trial, and guilty or nolo contendere please which are most prevalent where the defendant does not go to trial but, instead, accepts a plea deal offered from the prosecutor. Similarly, deferred judgments and sentences will be considered convictions where the defendant fails to successfully complete the terms of the deferred sentence. See C.R.S. § 18-1.3-602.
Accordingly, anytime a plea deal is entered into or a guilty verdict is obtained for any of the criminal offenses enumerated above, the defendant will also be liable for restitution owed to any victims of the offense.
Where restitution is applicable, the restitution order entered by the court after a conviction must indicate one of four things:
– The specific amount of restitution the defendant owes;
– An order indicating the defendant is obligated to pay restitution but that the specific amount owed will be determined within 91 days of the order being entered;
– An order indicating that, in addition to or in place of a specific amount of restitution, the defendant shall pay actual costs of specific future treatment for the victim of the crime; or
– A specific finding that any victims of the crime did not suffer a monetary loss and, thus, no restitution is owed by the defendant.
See C.R.S. § 18-1.3-603. Consequently, the specific amount of restitution owed by the defendant does not have to be known or entered at the time of conviction. Instead, the court can allow 91 days for restitution to be determined which may include setting a restitution hearing in the near future. Notably, even the 91 deadline can be continued for good cause. Additionally, restitution can be an ongoing obligation in the event that the victim has ongoing expenses such as medical costs.
Legal Effects of a Restitution Order in Colorado Criminal Cases
Once a restitution is ordered in a Colorado criminal case, it is considered a final civil judgment in favor of the state and any victim listed in the order. That is, a restitution order entered in a criminal case effectively establishes civil liability for the defendant and operates as a civil judgment entered against the defendant in favor of the injured party. Importantly, however, while traditional civil judgments expire after a certain amount of time and must be renewed, criminal restitution orders remain in force until the restitution is paid in full or until two years have passed after the defendant’s death. See C.R.S. § 18-1.3-603.
Along these same lines, the entry of a restitution order has powerful implications against a defendant and in favor of any victims the restitution is owed to. Specifically, and as mentioned above:
– Restitution orders survive until they are paid off;
– The restitution amount accrues interest at the rate of 8% per year from the date of entry;
– Any attorneys’ fees and costs incurred in pursuing and collecting the restitution amount will have to be reimbursed by the defendant;
– The entry of an order constitutes a lien against personal property owned by the defendant; and
– Restitution orders are considered actions amounting to willful and malicious injury and cannot be discharged in bankruptcy.
See C.R.S. § 18-1.3-603(3). Thus, where a restitution order is entered, it will effectively be non-dischargeable, can be used as a lien on the defendant’s property, and will accrue interest until it is paid off. Statutes governing the collection of restitution are enumerated at C.R.S. § 16-18.5-101, et seq. But see In re McNabb, 287 B.R. 820 (Bankr. D. Colo. 2003) (indicating that the Colorado legislature cannot preempt federal bankruptcy law and declare certain debts to be non-dischargeable).
Limitations for Restitution Orders in Colorado Criminal Cases
The types of injuries and losses that can be included as restitution in a criminal case are enumerated by statute. Specifically, C.R.S. § 18-1.3-602(3) defines restitution to include any pecuniary loss suffered by a victim, including, by way of example:
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, and other losses or injuries proximately caused by an offender’s conduct and that can be reasonable calculated and recompensed in money.
While this definition is broad, the statute also explicitly indicates that restitution does not include damages for physical or mental pain and suffering, loss of consortium, loss of enjoyment of life, loss of future earnings, or punitive damages. Accordingly, restitution can be thought of as money actually expended or the value of property lost as a result of the criminal offense, but does not include non-economic damages that would otherwise be available in traditional civil personal injury claims. See C.R.S. § 18-1.3-602.
Further, for non-felony convictions of crimes under C.R.S. title 42, et seq., Colorado’s vehicle and traffic statutes, the court may only order restitution against the defendant for the amount of the victim’s pecuniary loss that is not covered by insurance, an indemnity agreement, or a risk management fund. In essence, for traffic violations that result in injury to a victim, a defendant will only be liable for restitution where the pecuniary loss of the victim exceeds the amount of insurance available to cover the victim’s injuries. See C.R.S. § 18-1.3.603(8)(a).
Lastly, while a sentence is not considered final until a restitution order, if applicable, is entered, once an order is entered it is considered a final judgment and is itself an appealable order. See People v. Hill, 296 P.3d 121 (Colo. App. 2011).
© 2017 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.