Previous  Next

18-1.3-205. Restitution as a condition of probation.

Statute text

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.

History

Source: L. 2002: Entire article added with relocations, p. 1382, 2, effective October 1.

Annotations

Editor's note: This section is similar to former 16-11-204.5 as it existed prior to 2002.

Annotations

Cross references: For administrative proceedings to compensate victims of crime, see article 4.1 of title 24; for restitution as a condition of parole, see 17-2-201 (5)(c); for restitution to victims of crime generally, see article 28 of title 17; for charges for bad checks received as a restitution payment ordered as a condition of a plea agreement, see 16-7-304; for charges for bad checks received as a restitution payment ordered as a condition of a deferred prosecution or deferred sentence, see 16-7-404; for restitution by delinquent children under the "Colorado Children's Code", see 19-2-918.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982).

Annotator's note. Since 18-1.3-205 is similar to 16-11-204.5 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.

The legislative purpose underlying the statutory scheme is obvious from the statutory test: In all cases in which a convicted defendant's criminal conduct causes pecuniary damages to a victim, the sentencing court is obliged to order the defendant to pay restitution to the victim or the victim's immediate family and to fix the amount of such restitution as part of the judgment, whether the sentence be to probation or to a term of incarceration. People v. Johnson, 780 P.2d 504 (Colo. 1989).

Restitution is intended to make the victim whole. People v. King, 648 P.2d 173 (Colo. App. 1982); People v. Catron, 678 P.2d 1 (Colo. App. 1983); People v. Phillips, 732 P.2d 1226 (Colo. App. 1986); People v. Engel, 746 P.2d 60 (Colo. App. 1987).

Replacement value should be the measure of restitution when the plaintiff demonstrates that they will have to replace an item that is not readily available at fair market value. Where restitution is sought for "anticipated future expense" there is the possibility that the plaintiff will reap a windfall. Nonetheless, a victim who anticipates incurring future expenses is entitled to be placed in the same financial position he or she would have been in had the wrong not been committed. People v. Stafford, 93 P.3d 572 (Colo. App. 2004).

Restitution is not a substitute for a civil action to recover damages. People v. King, 648 P.2d 173 (Colo. App. 1982); People v. Catron, 678 P.2d 1 (Colo. App. 1983).

Mere pendency of civil suit between criminal and victim does not vitiate trial court's duty to order restitution. People v. Smith, 754 P.2d 1168 (Colo. 1988).

A release from liability obtained in a civil settlement cannot limit a criminal court's authority to order restitution equivalent to actual pecuniary damages. A contrary conclusion would violate the plain language of this section and would frustrate the rehabilitative purposes of probation by permitting criminal defendants to avoid financial responsibility for their conduct. People v. Maxich, 971 P.2d 268 (Colo. App. 1998).

Application of 1985 amendment at 1994 restitution hearing not additional punishment within meaning of ex post facto prohibition of state constitution. People v. Stewart, 926 P.2d 105 (Colo. App. 1996).

Restitution provisions of this section do not apply where defendant, who pleaded guilty to theft by receiving, was not sentenced to probation, but trial court could impose restitution under statutes requiring restitution as a condition of parole ( 16-11-104 (4) and 17-2-201 (5)(c)(I)). People v. Schmidt, 700 P.2d 925 (Colo. App. 1985).

The court's duty to fix the amount of restitution is not confined to sentences to probation but applies equally to sentences to imprisonment. People v. Johnson, 780 P.2d 504 (Colo. 1989).

The fact that the victim might have filed a civil claim for damages against the convicted offender, or intends to do so in the future does not dispense with the courts obligation to order the offender to pay restitution and to fix the amount of the restitution at the time of sentencing. People v. Johnson, 780 P.2d 504 (Colo. 1989).

"Victim" construed. The term "victim", as it appears in this section, refers to the party immediately and directly aggrieved by the criminal act, and not to others who suffer loss because of some relationship, contractual or otherwise, to the directly aggrieved party. People v. King, 648 P.2d 173 (Colo. App. 1982); People v. Catron, 678 P.2d 1 (Colo. App. 1983); People v. Jones, 701 P.2d 868 (Colo. App. 1984) (all cases decided prior to 1985 amendment).

Towing company is a "victim" for purposes of restitution because it sustained a pecuniary loss as a result of defendant's criminal conduct and is therefore a person aggrieved by the offender's conduct. People v. Clay, 74 P.3d 473 (Colo. App. 2003).

A decedent's minor children are not "victims" within the meaning of the statute even though it is obvious that minor children suffer a loss at the death of a parent. People v. Catron, 678 P.2d 1 (Colo. App. 1983); People v. Quinonez, 701 P.2d 74 (Colo. App. 1984), aff'd in part and rev'd in part on other grounds, 735 P.2d 159 (Colo. 1987) (both cases decided prior to 1985 amendment).

Where the crime results in death, the "victim" for purposes of restitution is the decedent. The decedent's personal representative may properly be designated to receive, as restitution, such damages suffered by the victim as the trial court may order to be paid as a condition of probation. People v. Catron, 678 P.2d 1 (Colo. App. 1983) (decided prior to 1985 amendment).

The term "victim" refers to the person named in the charge of which defendant was convicted and not to persons named in charges which were dismissed. People v. Canseco, 689 P.2d 673 (Colo. App. 1984); People v. Quinonez, 701 P.2d 74 (Colo. App. 1984), aff'd in part and rev'd in part on other grounds, 735 P.2d 159 (Colo. 1987).

County department of human services is not a "victim" for purposes of restitution because an essential element of the underlying crime in the case requires wrongful conduct against a child pursuant to 18-6-401 (1)(a) and (7)(b)(I). Accordingly, the court erred in imposing restitution to the county department, and any expenses the department incurred were incidental to its duties. People v. Padilla-Lopez, 298 P.3d 967 (Colo. App. 2010), aff'd, 2012 CO 49, 279 P.3d 651.

An insurance carrier may be considered a victim pursuant to this section since it includes within the definition of "victim" parties "who have suffered losses because of a contractual relationship". People v. Phillips, 732 P.2d 1226 (Colo. App. 1986); People v. Lunsford, 43 P.3d 629 (Colo. App. 2001).

If a party sustains damages as a result of defendant's conduct, the damages are recoverable regardless of whether the party was named as a victim in the prosecution. People v. Lunsford, 43 P.3d 629 (Colo. App. 2001).

The defendant's son was a victim of the crime of contributing to the delinquency of a minor where the defendant was convicted of using her son to shoplift video games. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).

The minor child is the victim of the crime of contributing to the delinquency of a minor. Therefore, he is entitled to restitution. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).

Under the definition of "victim" in effect when the crime took place, an insurance company could not be reimbursed. Court order allocating restitution payments to insurance company under new definition of "victim" did not violate ex post facto clause. Under either version of the statute the court was authorized to order full restitution, therefore, there is no change in the quantum of punishment. People v. Woodward, 11 P.3d 1090 (Colo. 2000).

This statute does not limit monetary conditions of probation only to restitution and a court may impose a variety of monetary conditions in connection with granting probation, including a requirement to make a charitable contribution. People v. Burleigh, 727 P.2d 873 (Colo. App. 1986).

This section specifically provides for restitution to be made for the actual pecuniary damage incurred by the victim as the direct result of the defendant's conduct. People v. Phillips, 732 P.2d 1226 (Colo. App. 1986).

Restitution is part of the criminal sentence rather than merely a debt between the defendant and the victim. Trial courts are required to impose restitution in an amount equal to the actual pecuniary damages sustained by the victim, regardless of the defendant's ability to pay. People v. Salas, 42 P.3d 68 (Colo. App. 2001).

Section contemplates restitution for losses resulting only from criminal conduct by the defendant. People v. Estes, 923 P.2d 358 (Colo. App. 1996).

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).

The trial court is prohibited from ordering restitution for losses attributed to conduct that was not prosecuted because of the applicable statute of limitations. People v. Davalos, 30 P.3d 841 (Colo. App. 2001).

Restitution order should not include payment for future counseling for victim where nothing in the victim impact statement justified the need for future counseling. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).

Absent evidence supporting the need for future counseling, the trial court erred in entering an order for undetermined future counseling expenses. People v. Estes, 923 P.2d 358 (Colo. App. 1996).

Payment of restitution is authorized only as to the victim of a defendant's conduct and only for the actual pecuniary damage the victim sustained as the direct result of the defendant's conduct. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).

Because this section authorizes payment of restitution in the amount of the actual pecuniary damages sustained by the victim, an order of restitution in the amount paid by the victim to repair the stolen vehicle was reasonable even though it exceeded the fair market value of the vehicle before it was stolen. People v. Courtney, 868 P.2d 1126 (Colo. App. 1993).

An order of restitution should be limited to the difference between the total amount of the victim's actual, pecuniary damages and any proceeds attributable to those damages received by the victim from the settlement of the civil claim. People v. Acosta, 860 P.2d 1376 (Colo. App. 1993).

"Actual pecuniary damages" are not limited to out-of-pocket expenditures, but encompass other losses or injuries that can be reasonably calculated and recompensed in money. Thus, the value of employees' time spent in conducting inventories for missing goods and installing and using security devices was recompensable under this section, regardless of whether any funds in addition to regular salaries were expended by the victim company. People v. Duvall, 908 P.2d 1178 (Colo. App. 1995).

Restitution is not limited to the value of the damaged item. It may include repair costs, even if those costs exceed the damage object's value. People v. Smith, 181 P.3d 324 (Colo. App. 2007).

Defendant's financial ability to pay restitution is a defense to a charge of violating restitution requirement of deferred sentence. People v. Afentul, 773 P.2d 1081 (Colo. 1989). But see Williams v. People, 2019 CO 101, 454 P.3d 219.

If the victim has suffered a pecuniary loss, full restitution is to be ordered regardless of the defendant's ability to pay. Ordering restitution regardless of the defendant's ability to pay is not imposing an excessive fine, because restitution is not a fine. A fine is solely a monetary penalty where restitution is to make the victim whole. People v. Stafford, 93 P.3d 572 (Colo. App. 2004).

Interest on the unpaid balance of the restitution amount does not constitute actual pecuniary loss caused by the defendant's conduct. People v. Engel, 746 P.2d 60 (Colo. App. 1987).

Defendant has the right to an opportunity to ascertain the amount of the injury sustained as a result of his conduct. People v. Engel, 746 P.2d 60 (Colo. App. 1987).

Where a defendant's conduct requires a victim to borrow funds to cover losses, both the principal and the interest constitute actual pecuniary damage and are properly includable in a restitution order. People v. Engel, 746 P.2d 60 (Colo. App. 1987).

Victim's loss of the use of money can be, under appropriate circumstances, pecuniary damage and interest may be awarded as compensation for that damage. People v. Acosta, 860 P.2d 1376 (Colo. App. 1993); People v. Stewart, 926 P.2d 105 (Colo. App. 1996).

Payments may be ordered to cover costs incurred by nonsurviving victims. Expenses relating to items such as medical care, funeral arrangements, and property damage caused by the defendant's criminal conduct may be the basis for an order of restitution to the estate or appropriate representatives of a decedent. People v. Deadmond, 683 P.2d 763 (Colo. 1984); People v. Quinonez, 735 P.2d 159 (Colo. 1987).

Trial court properly included in restitution to be paid to insurer the costs incurred by the insurer in processing the case, including adjustment expenses, investigation costs, and attorney fees. People v. Phillips, 732 P.2d 1226 (Colo. App. 1986).

Noneconomic damages may be included in restitution as long as the damages are actual pecuniary damages sustained by a party entitled to restitution. An insurance company may recover pain and suffering damages as a part of a restitution order. People v. Lunsford, 43 P.3d 629 (Colo. App. 2001).

Section does not prescribe a maximum restitution amount. Therefore, the rule set forth in Apprendi and Blakely concerning prescribed statutory maximum sentences does not apply to restitution orders in Colorado. Restitution is not limited by the jury's findings, but rather includes any pecuniary losses suffered by the victim as a proximate cause of the offender's conduct. People v. Smith, 181 P.3d 324 (Colo. App. 2007).

Awarding interest is compensation for actual, pecuniary damage suffered by the victim incidental to the defendant's crime of fraudulently obtaining funds because the victim loses the use of the money involved. Interest is awarded as restitution to compensate the victim for such loss of use, it is not intended to reimburse the victim for interest that otherwise would have been earned on the funds. Valenzuela v. People, 893 P.2d 97 (Colo. 1995).

Interest payable for fraudulently obtained food stamps accrues from the time the state reimburses the federal government for the fraudulently obtained food stamps. Interest should accrue only from the time of the actual injury and the state suffer actual loss only when it reimburses the federal government. Valenzuela v. People, 893 P.2d 97 (Colo. 1995).

As part of restitution for fraudulently obtained AFDC funds, court properly included interest from the time of the theft. Valenzuela v. People, 893 P.2d 97 (Colo. 1995).

When viewed in its entirety, the statute requires pre-judgment interest as part of the restitution amount to compensate fully the victim, and it also requires post-judgment interest for as long as the victim has not been paid in full. Nothing in the post-judgment interest provision precludes imposing pre-judgment interest. Roberts v. People, 130 P.3d 1005 (Colo. 2006).

Trial court did not abuse its discretion in ordering that restitution include the amount paid by the victim in reward money. The court found that payment of the reward was reasonable under the circumstances and would not have occurred but for the defendant's actions. The fact that the victim had no legal obligation to offer a reward and may not have been contractually bound to pay the award was immaterial. People v. Dillingham, 881 P.2d 440 (Colo. App. 1994).

As part of restitution for fraudulently obtained food stamps in violation of 26-2-128, the court properly included interest calculated in accordance with 5-12-102. People v. Valenzuela, 874 P.2d 420 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds, 893 P.2d 97 (Colo. 1995).

A governmental entity may qualify as a victim to whom restitution is payable. People v. Cera, 673 P.2d 807 (Colo. App. 1983); People v. Witt, 15 P.3d 1109 (Colo. App. 2000).

Costs incurred by the county department of social services in investigating fraudulently obtained food stamps constituted out-of-pocket losses resulting from that conduct and were properly includable in restitution. People v. Witt, 15 P.3d 1109 (Colo. App. 2000).

Fact that victim's loss was partially covered by insurance was irrelevant to a determination of the defendant's restitution obligation imposed as a condition of parole. People v. Jewett, 693 P.2d 381 (Colo. App. 1984).

Trial court erred in ordering defendant mother to pay restitution for her son's future counseling sessions where mother was found guilty of contributing to the delinquency of her minor son but there was no testimony in the record at sentencing about the need for future counseling sessions. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).

Terms and conditions of probation are statutory. Cumhuriyet v. People, 200 Colo. 466, 615 P.2d 724 (1980); People v. Deadmond, 683 P.2d 763 (Colo. 1984).

This section mandates that the court provide that the defendant make restitution as a condition of every sentence to probation, therefore insurer's contractual waiver of its right to recover pursuant to the insurance policy had no effect on insurer's statutory right to criminal restitution. People v. Phillips, 732 P.2d 1226 (Colo. App. 1986).

Victim's injury must result from defendant's conduct. This section requires that the injury of the victim be sustained as a result of the conduct of the defendant. Cumhuriyet v. People, 200 Colo. 466, 615 P.2d 724 (1980).

Restitution, which is intended to make the victim whole, means that a defendant should not be forced to repay a victim when there has been no indication that the damage or injury sustained by the victim was inflicted by the defendant. Cumhuriyet v. People, 200 Colo. 466, 615 P.2d 724 (1980).

Defendant can be subject to criminal liability only for the loss that was the result of his criminal conduct. People v. Brigner, 978 P.2d 163 (Colo. App. 1999).

And more than speculation is required for defendant to bear responsibility for the injury the victim sustained. Cumhuriyet v. People, 200 Colo. 466, 615 P.2d 724 (1980).

The people bear the burden of proving that the restitution sought is attributable to the defendant's conduct. People v. Engel, 746 P.2d 60 (Colo. App. 1987).

Sentencing court not barred by collateral estoppel and double jeopardy principles from considering acquitted conduct in determining an award of restitution. People v. Pagan, 165 P.3d 724 (Colo. App. 2006).

Preponderance of the evidence is the proper burden of persuasion to establish restitution in criminal cases. People v. Carpenter, 885 P.2d 334 (Colo. App. 1994).

Burden of proof for establishing amount of restitution owed is a preponderance of the evidence. People v. Smith, 181 P.3d 324 (Colo. App. 2007).

The standard of review on an appeal challenging the sufficiency of the evidence of a district court's restitution conclusion is to review de novo whether the evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, establishes by a preponderance of the evidence that the defendant caused that amount of loss. But this standard might not apply in every appeal where the proper amount of restitution is at issue. People v. Barbre, 2018 COA 123, 429 P.3d 95.

Victim need not be specifically named as party in criminal indictment or information. If there is sufficient evidence in the record to determine that an individual is directly and immediately aggrieved by the defendant's conduct, then restitution shall be paid to that individual. People v. Jones, 701 P.2d 868 (Colo. App. 1984).

Where defendant agrees to pay restitution to "victims" named in dismissed counts but not named in counts to which the defendant pleads guilty as part of a plea bargain, a restitution order issued as a condition of sentence is valid. However, a defendant who did not agree to pay restitution to victims of counts other than those to which he pled guilty until after his plea has been taken could not be ordered to pay restitution to unnamed victims. People v. Quinonez, 735 P.2d 159 (Colo. 1987).

Payments not dischargeable in bankruptcy. The purpose evidenced by the statutory language in this section is rehabilitative. The general assembly did not intend restitution to be a method of debt collection and did not intend to create a debtor-creditor relationship between the victim and the defendant or the state and the defendant. Therefore, restitution payments ordered by the court cannot be discharged under a federal Chapter 13 plan. In re Johnson, 32 B.R. 614 (Bankr. D. Colo. 1983).

The fact that a debtor will remain obligated to make restitution payments does not make his bankruptcy plan nonconfirmable under 11 U.S.C. 1325, provided that all the statutory requirements, especially good faith and feasibility, are satisfied. In re Johnson, 32 B.R. 614 (Bankr. D. Colo. 1983).

Restitution is appropriately imposed following a conviction for selling securities without a license, and is not precluded by the discharge in bankruptcy of defendant's liability on any civil claim arising out of the discharged debt. People v. Milne, 690 P.2d 829 (Colo. 1984).

Failure of trial court to make express findings regarding the defendant's ability to pay restitution is not reversible error where defendant's own testimony during trial and the presentence report showed the defendant was in a sufficient financial position to meet the restitution obligation imposed. People v. Phillips, 732 P.2d 1226 (Colo. App. 1986); People v. Estes, 923 P.2d 358 (Colo. App. 1996).

In ordering a defendant to pay restitution to the state for fraudulently obtained food stamps, it was error for a court to consider only the victim's pecuniary loss and not the defendant's ability to pay. People v. Valenzuela, 874 P.2d 420 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds, 893 P.2d 97 (Colo. 1995).

When the record was unclear as to whether the defendant had or had not been ordered to pay restitution as a condition of his probation, the defendant's refusal to acknowledge such a non-specific condition did not provide sufficient grounds for the revocation of his probation. People v. Dirgo, 773 P.2d 621 (Colo. App. 1989).

When, at the time of the revocation hearing, there was no order directing defendant to make any installment payments of restitution in any specific amount, other than for the first six months and the evidence was undisputed that defendant complied with that order, a revocation order based upon defendant's failure to comply with the court's order to pay restitution cannot be affirmed. People v. Frye, 997 P.2d 1223 (Colo. App. 1999).

In setting amount of restitution, trial court should consider the factors set out in subsection (1) but need not make express findings with respect to such factors. People v. Powell, 748 P.2d 1355 (Colo. App. 1987).

Defendant was appropriately ordered to pay restitution for thefts that were not specifically included in her guilty plea. People v. Borquez, 814 P.2d 382 (Colo. 1991).

A codefendant is jointly responsible for restitution when he is also a complicitor in the crime. People v. Fichtner, 869 P.2d 539 (Colo. 1994).

Codefendants were participants and complicitors in the same criminal acts, therefore, each is responsible for the damage he caused and also for the damage caused by the other. People v. Fichtner, 869 P.2d 539 (Colo. 1994).

Subsection (2) provides no right to offender to present evidence of ability to pay restitution during revocation hearing when hearing is based on other grounds. People v. McCarty, 851 P.2d 181 (Colo. App. 1992), aff'd, 874 P.2d 394 (Colo. 1994).

Defendant's act of stealing a vehicle was the proximate cause of the towing company's losses because, without it, such losses would not have been sustained. While the police department's failure to impound the vehicle on its own lot and the vehicle owner's failure to retrieve the vehicle earlier may have contributed to the towing company's losses, there is no evidence that these events were not reasonably foreseeable. People v. Clay, 74 P.3d 473 (Colo. App. 2003).

Applied in Cross v. District Court, 643 P.2d 39 (Colo. 1982); People v. Cheek, 734 P.2d 654 (Colo. App. 1987).