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People v. Brassill.

2024 COA 19. No. 23CA0058. Sentencing—Assessment of Restitution—Procedural Deadlines—Scheduling Order—Reasonable Diligence.

February 22, 2024

Brassill stole a motorcycle and crashed it into a fence. He pleaded guilty to first-degree aggravated motor vehicle theft and vehicular eluding. The guilty plea did not mention restitution. The district court accepted the plea and proceeded to sentencing, during which the judge inquired about restitution. The prosecution advised that a restitution figure was not yet available but could not give a reason for the lack of restitution information. The court ordered restitution, with a figure to be supplied to the court within 30 days. Defense counsel objected, and the district court denied the objection. The prosecution filed its restitution information and motion several weeks after the court-ordered deadline. Brassill objected, asserting that the prosecution (1) was required to request a restitution amount at sentencing unless the information supporting the request was unavailable; (2) was required but failed to make diligent efforts to ensure the information was available at sentencing; and (3) failed, without good cause, to comply with the court’s deadline for filing the restitution amount. Following a hearing, the court ordered restitution for the two victims but denied the restitution requested for the Colorado Department of Transportation, which amount was available six weeks before sentencing.

On appeal, Brassill argued that the phrase “not available prior to the order of conviction” in CRS § 18-1.3-603(2)(a) should be interpreted as applying to restitution information that is not available despite the prosecution’s exercise of diligent efforts to obtain the information. CRS § 18-1.3-603, Colorado’s restitution statute, requires the sentencing court to ensure that restitution is resolved within 91 days from entry of the conviction order. The restitution statute requires the prosecuting attorney to present the restitution information to the court before the order of conviction or within 91 days, if it is not available before entry of the conviction order. The court may extend the time when extenuating circumstances affect the prosecution’s ability to determine restitution. The court of appeals concluded that subsection (2)(a) requires the prosecution to use reasonable diligence to obtain restitution information and present it at or before sentencing. Further, the court concluded that when a sentencing court enters an order reserving on the amount of restitution owed, the court may enter a contemporaneous scheduling order requiring the prosecution to supply the requested restitution amount within a specified period that is less than 91 days. Here, the district court failed to expressly recognize the prosecution’s obligation to exercise reasonable diligence to determine the restitution amount before sentencing and thus erred as a matter of law. Additionally, the undisputed evidence shows that the prosecution failed to exercise reasonable diligence before entry of the conviction.

Brassill also argued that the restitution order must be vacated because the prosecution failed, without cause, to comply with the court’s deadline. Here, the district court acted within its discretion in setting the 30-day deadline in compliance with the Colorado Supreme Court’s directive in People v. Weeks, 2021 CO 75, and the prosecution violated that order by not timely filing the restitution information. However, the violation of a scheduling order does not deprive the court of authority to resolve restitution, and the court did not abuse its discretion by declining to deny restitution because it followed the statutory option of declaring restitution open while setting forth a procedure to ensure that it could resolve restitution within the 91-day period.

The order was affirmed.


Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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