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People v. Roberson.

2023 COA 70. No. 21CA1713. Restitution Amount—Statutory Deadline to Order Restitution—Good Cause to Extend Deadline—Waiver—Invited Error—Harmless Error.

July 20, 2023

Roberson pleaded guilty to felony forgery and theft in one case, misdemeanor criminal mischief in a second case, and a probation violation in a third case. At the June 25, 2020, sentencing hearing, the court ordered restitution but reserved determining the amount. It gave the prosecution 29 days to file a restitution request and the defense 21 days from the date of that filing to file an objection. The prosecution filed its initial restitution request on July 23, seeking $62,241.28. The next day, the court ordered that any objection to the restitution request was due by August 7. Roberson did not file an objection by that date, so the court ordered the requested amount of restitution on August 10. The next day, defense counsel filed an objection and motion to reconsider the restitution order because she had confused the deadlines. The court granted the motion, and defense counsel requested that the prosecution provide more information to substantiate the claimed restitution amount. Several amended requests for restitution, status conferences, and continuances followed. The court conducted a final restitution hearing on September 14, 2021. At that hearing, defense counsel argued that the court was without authority to enter restitution because the statutory deadline had passed. The court denied this objection at a status conference held two days later and established restitution in the full amount of the prosecution’s last amended request, $60,633.94.

On appeal, Roberson argued that the district court failed to make an express good cause finding before the CRS § 18-1.3-603(1)(b) 91-day deadline passed and therefore lacked authority to order restitution. After Roberson was sentenced and restitution was imposed, the Colorado Supreme Court held in People v. Weeks, 2021 CO 75, ¶¶ 4–5, that a trial court (1) must determine the restitution amount within 91 days of the judgment of conviction and (2) may extend that deadline only if it makes an express finding of good cause to do so before that deadline expires. Here, the court had until September 24, 2020, to determine restitution or make an express finding of good cause to extend the deadline, and defense counsel did not ask the court to hold the restitution hearing after that date. The court set the next status conference for October 2 without making an express finding of a reason to extend the deadline. Further, after defense counsel argued at the final restitution hearing that the court lacked authority to enter the restitution order, the court made a belated finding that it had good cause for not entering a timely order based on defense counsel’s objection to the restitution request. This belated good cause finding confirms that the court had not made an express good cause finding before the final restitution hearing. Accordingly, the district court lacked authority to enter the restitution order.

The People contended that Roberson waived or invited error by repeatedly asking for extensions beyond 91-day timeframe. However, following defense counsel’s objection, the prosecutor did not indicate that he was unable to provide the information defense counsel requested within the time remaining before the statutory deadline expired, and defense counsel did not represent that she could not review the information within that same period. There was also no discussion about the next court date being set outside the statutory deadline. And by the time defense counsel sought a continuance, the statutory deadline had passed, so the court already lacked authority to order restitution. Accordingly, Roberson did not waive or invite error.

The People further argued that Roberson’s challenge to the restitution order should be treated like a Crim. P. 35(a) illegal manner claim and subject to harmless error review. The People maintained that the district court’s error was harmless because it allowed defense counsel additional time to investigate the restitution request and delayed Roberson’s obligation to pay, and because Roberson had her objections heard fairly at a hearing. However, under Weeks, harmlessness is not a consideration because the trial court lacked authority to order restitution at the time of the order.

The restitution order was vacated.

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

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