People v. Martinez Rubier.
2024 COA 67. No. 23CA0450. Sentencing—Restitution—Procedural Deadlines—Extension of Time—Waiver of Right to Attend Restitution Hearing.
July 3, 2024
Martinez Rubier pleaded guilty to criminal mischief pursuant to a plea agreement, which included his agreement to pay restitution. The sentencing hearing occurred on the same day that the plea agreement was entered, and in accordance with the plea agreement, the court ordered him to pay restitution in an amount to be determined within 91 days, unless the prosecutor showed good cause for an extension of time to submit restitution information. The prosecutor neither requested an extension of time nor represented that restitution information was unavailable, but the court granted the prosecutor a 28-day extension of time to file restitution requests. Ten days after the sentencing hearing, the prosecutor filed a restitution request to which defense counsel timely objected. Martinez Rubier did not appear at the first scheduled restitution hearing. The court continued the hearing, but Martinez Rubier did not appear at the second hearing either. The court ordered him to pay restitution in the amount requested.
On appeal, Martinez Rubier contended that the court reversibly erred by granting the prosecutor an extension of time to submit restitution information because the prosecutor had the restitution information before the sentencing hearing but did not provide it. CRS § 18-1.3 603(2)(a) requires a prosecutor to present restitution information to the court before the order of conviction or within 91 days, if it is not available prior to the conviction order. Here, the record shows that the court entered the restitution order within the 91-day statutory deadline and that the extension of time did not prejudice Martinez Rubier. Accordingly, though the court’s ruling constitutes error, the error is harmless.
Martinez Rubier also argued that the trial court erred by proceeding with the second restitution hearing in his absence. Defendants have a due process right to be present at their restitution hearings but may waive that right. Here, the record does not show whether Martinez Rubier waived his right to be present at the second restitution hearing, so the trial court erred by proceeding with a second restitution hearing in his absence.
The restitution order was reversed and the case was remanded with instructions.