Restitution Update

Restitution has been a hot topic and moving target over the past year in Colorado, with the Colorado Supreme Court issuing several recent opinions on the subject and the legislature amending the restitution statute in 2025.

While many of the fundamentals of restitution remain the same, the obligations of prosecutors and judges have changed, the scope of defense waivers has been clarified, and post-conviction avenues for relief have been limited.

 What the restitution statute requires

 In 2021, the Colorado Supreme Court clarified that all judgements of conviction must include an order regarding restitution.[1] Under section 18-1.3-603(1), a sentencing court must include one of four possible types of restitution orders with every order of conviction:[2]

(a)   An order requiring a specific amount of restitution;

(b)   An order requiring restitution but indicating the specific amount of restitution will be determined at a later date;

(c)    An order, in addition to or in place of a specific amount of restitution, that the defendant pay restitution covering the actual costs of specific future treatment of any victim of the crime; or

(d)   An order finding there is no restitution because no crime victim suffered a pecuniary loss.[3]

Before House Bill 25-1304, the deadline to determine the specific amount of restitution, as contemplated in section 18-1.3-603(1)(b), was 91 days following the order of conviction with the option to extend the deadline for good cause. This meant that, if a court entered an order requiring restitution, it had 91 days to determine the amount of restitution based on information presented by the DA.

Following the legislative amendment, prosecutors now have 63 days to submit their restitution information to the court “if it is not available prior to the order of conviction.”[4] This deadline may also be extended if the court finds “there are extenuating circumstances affecting the prosecuting attorney’s ability to determine restitution.”[5]

Once the prosecutor submits the restitution information, the court then has 63 additional days to enter an order requiring the defendant to pay a specific amount of restitution.[6] The court may issue the restitution order beyond its 63-day deadline if “good cause is shown for extending the time period[.]”[7]

Colorado Supreme Court Opinions

The Colorado Supreme Court issued five opinions impacting restitution in 2025:

·       Babcock v. People, 2025 CO 26

·       People v. Roberson, 2025 CO 30

·       Johnson v. People, 2025 CO 29

·       Tennyson v. People, 2025 CO 31

·       Snow v. People, 2025 CO 32

These opinions provide several important takeaways for any criminal defense attorney with a case involving restitution:

  •  A defendant’s right to have the prosecution submit restitution material to the court within a specified time period under section 18-1.3-603(2)(a) (63 days under the amended statute) is not jurisdictional and can be waived by the defense.[8]

  • A defendant’s right to have the court determine the specific amount of restitution within a specified time period under section 18-1.3-603(1)(b) (63 days following the prosecution’s submission of restitution information under the amended statute) is also not jurisdictional and can be waived by the defense.[9]

  • Both of these rights are statutory rights, rather than constitutional rights, and as such, a defendant’s waiver of these rights need only be voluntary and not knowing and intelligent. Thus, a waiver must only be “‘the product of a free and deliberate choice rather than intimidation, coercion, or deception.’”[10]

  • Waiver can come from defense counsel requesting,[11] accepting,[12] or failing to object[13] to a hearing date beyond the relevant statutory deadline; from the terms of a plea agreement;[14] from signed plea paperwork or deferred judgment paperwork;[15] and from a defendant’s statements at a providency hearing.[16]

To challenge an illegal restitution order in the post-conviction context, the Colorado Supreme Court specified when defendants can bring “illegal sentence” claims under Rule 35(a), which have no time restrictions, and when defendants are stuck raising “illegal manner” claims under Rule 35(a), which must be brought within 120 days after sentencing:

  • If the sentencing judge “deferred the issue of restitution in its entirety” for any period of time at the sentencing hearing, any subsequent restitution order is not authorized by law and can be challenged as an “illegal sentence” under Rule 35(a) and corrected by the court at any time.[17] In such a situation, the proper remedy is for the sentencing court to vacate the restitution order and enter an order of no restitution under section 18-1.3-603(1)(d).[18]

  • By contrast, if the court found the defendant liable for restitution at sentencing but failed to enter an order specifying the precise amount of restitution within the statutory timeframe, a defendant can only challenge such a sentence as an “illegal manner” claim under Rule 35(a), which must be brought within 120 days after sentencing.[19] This is the case even when the sentencing court failed to find good cause for the delay in ordering restitution beyond the statutory deadline.[20]

It is critical that defense attorneys recognize and object when a court’s scheduling practices violate a client’s statutory rights and carefully examine plea agreements for unintended waivers. If you have a case with restitution issues, reach out to the attorneys at 2nd-Chair for assistance navigating the evolving restitution landscape.

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[1] People v. Weeks, 498 P.3d 142, 147-48 (Colo. 2021).

[2] This does not apply in the narrow scenario in which a defendant is convicted of a state traffic misdemeanor offense issued by a municipal or county court in which the prosecuting attorney is acting as a special deputy DA pursuant to an agreement with the DA’s office. § 18-1.3-603(1).

[3] See § 18-1.3-603(1)(a)-(d); Weeks, 498 P.3d at 148.

[4] § 18-1.3-603(2)(a). The Colorado Supreme Court recently granted certiorari in Solano v. People, 24SC704 to address whether the prosecution is obligated to present restitution information at sentencing when the defendant does not object or make a record regarding the availability of restitution information, and further, whether the court loses authority to order restitution when the prosecution fails to comply with subsection (2)(a) of the statute.

[5] § 18-1.3-603(2)(a). The Colorado Supreme Court also granted certiorari in Brassill v. People, No. 24SC196 and may clarify what “available prior to the order of conviction” means in the context section 18-1.3-603(2)(a). Specifically, the supreme court will address whether a district court loses authority to impose restitution if the prosecutor does not exercise “diligent efforts” to bring restitution information to sentencing and whether a defendant may seek dismissal of restitution proceedings based on the prosecutor’s failure to use “reasonable diligence” to gather restitution information before sentencing.

[6] § 18-1.3-603(1)(b).

[7] § 18-1.3-603(1)(b).

[8] Johnson, ¶ 25.

[9] Babcock, ¶¶ 21-27; Roberson, ¶ 12.

[10] Babcock, ¶¶ 29-30 (quoting People v. Smiley, 2023 CO 36, ¶ 16); Johnson, ¶¶ 26-27.

[11] Babcock, ¶ 30; Johnson, ¶ 31.

[12] Roberson, ¶¶ 7-8, 16-17.

[13] Johnson, ¶ 31; Roberson, ¶ 17.

[14] Johnson, ¶¶ 28, 32.

[15] Johnson, ¶ 28.

[16] Johnson, ¶¶ 29, 32.

[17] Snow, ¶¶ 2, 22-24.

[18] Snow, ¶¶ 38, 41.

[19] Tennyson, ¶ 45.

[20] Tennyson, ¶ 3.

Kelly Meilstrup