Takeaway
In short, this case requires Colorado courts to address restitution at sentencing and strictly enforce separate, expressly extended deadlines for the prosecution to supply the proposed amount and for the court to set the final amount.
Benjamin Weeks was convicted of two counts of aggravated robbery and two counts of felony menacing after robbing a convenience store with a deadly weapon. At sentencing, the prosecutor said that restitution would be sought but had not yet filed a motion. The court granted the prosecutor's request to leave restitution "open" for ninety-one days and set a schedule for future briefing and any requested hearing.
Nine days later, the prosecution sought an "interim" restitution award of $524.19: the $506.54 stolen in the robbery plus prejudgment interest. Weeks responded that the store's loss was only $506.54 and that restitution could not remain open indefinitely. The court did not promptly decide the motion. More than eight months after sentencing, Weeks requested a restitution hearing. Nearly one year after sentencing, the trial court ordered Weeks to pay $524.19, reasoning that its earlier briefing-and-hearing schedule had implicitly established good cause to decide restitution outside the ninety-one-day period.
A divided court of appeals vacated the award. The majority held that section 18-1.3-603(1)(b) requires the trial court to determine the restitution amount within ninety-one days of the judgment of conviction unless the court finds good cause to extend its deadline. Because the court made no timely good-cause finding, it lacked authority to enter the late order. Judge Berger dissented, concluding that allowing the prosecution time to pursue restitution implicitly supplied good cause for the court to decide the issue later.
Issue #1
Whether section 18-1.3-603(1)(b)'s ninety-one-day deadline governs the prosecution's submission of a proposed restitution amount or the trial court's determination of the amount the defendant must pay.
Holding
It governs the trial court's determination of the specific restitution amount, not the prosecution's submission of its proposed amount.
Reasoning
The restitution statute creates two separate duties and deadlines. Under subsection (2), the prosecution must provide the information supporting restitution, including the proposed amount, before judgment or, if that information is unavailable, within ninety-one days after judgment. Under subsection (1)(b), the court may enter a preliminary order obligating the defendant to pay restitution while deferring its determination of the specific amount.
Reading subsection (1)(b) as a second deadline for the prosecution would make it largely duplicative of subsection (2). It would also illogically subject the prosecution to two standards for extending what would be essentially the same deadline: extenuating circumstances under subsection (2) and good cause under subsection (1)(b). The Court construed the provisions to give each independent work to do.
The context confirms that subsection (1)(b) concerns the court. Subsection (1) lists the four kinds of restitution orders a sentencing court may include in every judgment of conviction. A prosecutor does not enter orders; only the court does. Thus, when subsection (1)(b) says that the amount 'shall be determined' within ninety-one days, it refers to the court's obligation to determine the amount owed.
Issue #2
Whether the prosecution may leave the issue of restitution entirely open after entry of the judgment of conviction, rather than seeking a preliminary restitution order at sentencing.
Holding
No. The prosecution must move for restitution before or during sentencing, and the judgment must include one of the statute's authorized restitution orders.
Reasoning
Section 18-1.3-603(1) requires every judgment of conviction to contain an order addressing restitution, subject to a narrow exception not relevant here. The statute authorizes only four forms of order: a specific restitution amount; a preliminary order requiring restitution while deferring the amount; an order for specified future treatment costs; or a finding that no victim suffered pecuniary loss.
The statute permits a court to defer only the amount of restitution through a preliminary order under subsection (1)(b). It does not permit the prosecutor or court to reserve the entire question whether restitution will be imposed after the judgment enters. Consequently, the common practice of simply stating that restitution will remain 'open' for ninety-one days does not comply with the statute.
When a court enters a preliminary order at sentencing, the mittimus must state that restitution has been ordered and that the amount will be determined later. Once the court timely fixes the amount, determines that none is due, or the prosecution fails to provide a timely proposed amount, the mittimus must be updated to reflect the resulting disposition.
Issue #3
Whether either ninety-one-day deadline may be extended by implication, or after it has expired.
Holding
No. Each deadline may be extended only through an express finding made before its expiration: extenuating circumstances for the prosecution's deadline and good cause for the court's deadline.
Reasoning
The prosecution's subsection (2) deadline may be extended only if the court expressly finds extenuating circumstances affecting the prosecution's ability to determine the proposed restitution amount. The court's subsection (1)(b) deadline may be extended only if the court expressly finds good cause to allow more time to determine the amount the defendant must pay.
The Court required express and timely findings because an implied or retrospective extension would deprive the statutory deadlines of meaningful force. A request for more time, or an order granting a general request to leave restitution open, does not itself establish the distinct statutory findings required for either deadline.
The Court did not require formulaic language. Substance controls over labels. But the record must show that, before the applicable deadline runs, the court actually found the facts necessary to support the appropriate extension. A later request or order cannot revive an already expired deadline.
The Court acknowledged the practical tension in a statutory scheme that can allow the prosecution to submit its proposed amount on the ninetieth or ninety-first day while requiring the court to decide promptly enough to preserve the defendant's opportunity to respond. But imperfect legislative drafting does not authorize courts to rewrite the statute. Any broader solution must come from the General Assembly.
Issue #4
Whether the trial court retained authority to order Weeks to pay restitution nearly one year after the judgment of conviction.
Holding
No. The court lost authority because it did not determine the restitution amount within ninety-one days and did not make an express, timely finding of good cause to extend its own deadline.
Reasoning
The prosecutor's request at sentencing to keep restitution open for ninety-one days was not a proper substitute for a preliminary restitution order requiring Weeks to pay restitution while deferring the amount. Nor did the trial court's general grant of that request extend its separate statutory deadline to decide the amount.
The court eventually found that its briefing and hearing schedule had implicitly established good cause. That finding came after the ninety-one-day period had expired and therefore could not validate the late restitution order. The Court refused to infer good cause from a scheduling arrangement, particularly given the nearly year-long delay.
Because the trial court had not timely extended its subsection (1)(b) deadline, it lacked authority to impose the $524.19 award. The Supreme Court therefore affirmed the court of appeals, remanded the case, and directed that the mittimus be amended to state that no restitution is required.