v. Weeks , 2020 COA 44 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 19, 2020
2020COA44
No. 19CA0255, People v. Weeks — Criminal Law — Sentencing
— Restitution — Assessment of Restitution
A division of the court of appeals considers whether a trial
court may order restitution more than ninety-one days after a
defendant’s conviction without a finding of good cause or
extenuating circumstances for delaying its ruling, aside from the
prosecution’s request for additional time to seek restitution. Based
on the plain language of section 18-1.3-603, C.R.S. 2019, the
majority holds that courts must order restitution within ninety-one
days or make a sufficient finding of “good cause” or “extenuating
circumstances” to extend the statutory deadline. The mere fact that
the prosecution sought additional time to request restitution does
not automatically amount to good cause or extenuating
circumstances.
The dissent would affirm, concluding that when a court
extends the time for the prosecutor to seek restitution, that
extension implicitly constitutes good cause for the trial court to
decide the motion outside of the prescribed ninety-one-day period.
COLORADO COURT OF APPEALS 2020COA44
Court of Appeals No. 19CA0255
Garfield County District Court No. 17CR75
Honorable James B. Boyd, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Benjamin Weeks,
Defendant-Appellant.
ORDER VACATED
Division VII
Opinion by JUDGE LIPINSKY
Fox, J., concurs
Berger, J., dissents
Announced March 19, 2020
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Under the Colorado restitution statute, if a district court
decides at sentencing to defer its decision regarding the appropriate
amount of restitution, “the specific amount of restitution shall be
determined within the ninety-one days immediately following the
order of conviction, unless good cause is shown for extending the
time period by which the restitution amount shall be determined.”
§ 18-1.3-603(1)(b), C.R.S. 2019.
¶2 Defendant, Benjamin Weeks, appeals the trial court’s
restitution order, contending that the court erred by ordering
restitution more than eleven months after sentencing without good
cause for delaying its ruling. We agree. We therefore reverse the
order and remand for further proceedings.
I. Background
¶3 A jury found Weeks guilty of two counts of aggravated robbery
and two counts of menacing based on his robbery of a gas
station/convenience store.
¶4 At the sentencing hearing on February 13, 2018, the
prosecutor requested that restitution remain open. The trial court
granted the request:
1
I will leave restitution open for 91 days. If a
motion is filed, any response should be filed
within 28 days and any reply within seven. If
anyone wants a hearing, the request needs to
be made in the pleadings. If no request is
made, I’ll rule on the pleadings.
¶5 Nine days later, the prosecution filed a motion requesting
$524.19 in restitution — $506.54 for the money Weeks stole during
the robbery and $17.65 in prejudgment interest. The prosecution
asked the court to order the $524.19 as an “interim amount”
because it was still investigating additional possible bases for
restitution. The prosecution did not request a restitution hearing.
¶6 Twenty-three days later, Weeks filed an objection to the
restitution motion. He argued, among other things, that the
victim’s sole loss was the $506.54 in stolen money and that the
court should not hold restitution open indefinitely based on the
prosecution’s claim that it may learn of additional losses in the
future. Weeks also did not request a restitution hearing.
¶7 Nothing happened on the restitution issue for the next
seven-and-a-half months. In late October 2018, Weeks filed a
motion for a status conference based on the pending restitution
motion and a pending motion for return of property.
2
¶8 At a status conference in November 2018, the court set a
hearing on the pending motions for December 2018. At the
December 2018 hearing, the prosecution clarified that it was
seeking restitution only for the originally requested amount of
$524.19. In response, Weeks argued, among other things, that the
trial court no longer had authority to order restitution because the
ninety-one-day deadline in section 18-1.3-603(1)(b) had expired.
The court took the matter under advisement.
¶9 Following the hearing, Weeks filed a brief presenting further
argument on the ninety-one-day deadline issue.
¶ 10 In January 2019, more than eleven months after sentencing,
the court issued an order granting the $524.19 in restitution. In a
separate written order, the court explained why it was rejecting
Weeks’s argument that it no longer had the authority to order
restitution based on the ninety-one-day deadline in section
18-1.3-603(1)(b):
Applying the time frame in the statute requires
the consideration of good cause. There is
some tension in the statute about the 91-day
time frame. Subsection (1)(b) of § 18-1.3-603
provides restitution “shall be determined”
within 91 days. However, subsection 2
authorizes the Court to allow the People 91
3
days to submit information in support of a
specific restitution amount. For the Court to
lose the ability to fix an amount on the same
day the People could file restitution
information would deprive a defendant of any
opportunity to respond to the information,
deprive both parties of any opportunity to
request a hearing and deprive the Court of any
ability to consider the information beyond the
moments between the filing of the information
and the end of the day. To address these
potential concerns, the Court in this case
entered its usual order when allowing the
People time to file restitution information. The
Court imposed on the People the 91-day
deadline imposed by the statute followed by
time for a response from the Defendant and a
reply by the People with the opportunity to
request a hearing. Although the briefing was
sooner completed in this case, the Court, at
the time of sentencing, authorized more than
91 days to complete the determination of
restitution. No objections were made to this
procedure.
With respect to good cause for a longer time
frame, Defendant is correct the Court has not
uttered the term “good cause” to extend the
time for restitution beyond 91 days. However,
the Court concludes the Court’s briefing and
hearing procedure created at the time of
sentencing necessarily and implicitly
established good cause for restitution to be
determined beyond the 91-day period.
4
II. Standard of Review
¶ 11 The proper interpretation of the restitution statute is a
question of law that we review de novo. People v. Perez,
2019 COA 62, ¶ 8, ___ P.3d ___, ___. However, the issue of whether
good cause exists to extend the ninety-one-day deadline to
determine restitution under section 18-1.3-603(1)(b) is reviewed for
an abuse of discretion. See People v. McCann, 122 P.3d 1085, 1088
(Colo. App. 2005); People v. Harman, 97 P.3d 290, 294 (Colo. App.
2004). A court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair, or when it misconstrues or
misapplies the law. People in Interest of D.L.C., 2019 COA 135, ¶ 6,
___ P.3d ___, ___.
III. Analysis
A. The Time Limit for “Determining” Restitution Under Section
18-1.3-603(1)(b)
¶ 12 The People appear to suggest that the ninety-one-day deadline
for “determining” restitution under section 18-1.3-603(1)(b) may
refer not to a district court’s obligation to “determine” the
appropriate amount of restitution to order, but instead to the
5
prosecution’s obligation to “determine” the appropriate amount of
restitution to request.
¶ 13 We disagree. Colorado case law indicates that the
“determin[ation]” of restitution under section 18-1.3-603(1)(b) refers
to the district court’s obligation to order a specific amount of
restitution within ninety-one days, unless good cause exists to
extend that deadline. See People v. Belibi, 2018 CO 24, ¶ 7,
415 P.3d 301, 302 (explaining that section 18-1.3-603(1)(b) requires
that “the specific amount of restitution be set within ninety-one
days”) (emphasis added); Meza v. People, 2018 CO 23, ¶ 14,
415 P.3d 303, 308 (holding that section 18-1.3-603(1)(b) allows a
district court to “reserv[e] until a later date, within ninety-one days,
findings with regard to other victims or losses of which the
prosecution is not yet aware”) (emphasis added); Perez, ¶¶ 14-15,
___ P.3d at ___ (“If the court reserves the determination of
restitution, as it is authorized to do, restitution is to be fixed within
ninety-one days after the order of conviction, unless good cause is
shown for extending that time. . . . Because restitution was
ultimately awarded more than ninety-one days after the order of
conviction, a showing of good cause was required.”) (emphasis
6
added). Further, in Sanoff v. People, 187 P.3d 576 (Colo. 2008), the
supreme court equated a trial court’s jurisdiction “to set an amount
of restitution” with the court’s jurisdiction “to determine the amount
of restitution.” Id. at 579 (emphasis added). It is no coincidence
that, in discussing the trial court’s jurisdiction, the supreme court
paraphrased section 18-1.3-603(1)(b)’s reference to “the restitution
amount shall be determined.”
¶ 14 Adopting the People’s interpretation would render section
18-1.3-603(1)(b) superfluous of the language in section
18-1.3-603(2) giving the prosecution ninety-one days to present
information in support of its restitution request. (We discuss that
provision further below.) Instead, those two statutory provisions
refer to distinct obligations. See Harman, 97 P.3d at 294 (“[T]he
restitution act contains standards both for the late provision of the
restitution amount to the court by the prosecutor (‘extenuating
circumstances’), § 18-1.3-603(2), and for the late determination of
the restitution amount (‘good cause’), § 18-1.3-603(1)(b). . . . [W]e
do not determine whether ‘extenuating circumstances’ are
comparable to ‘good cause.’ However, a reasonable reading of the
statute is that extenuating circumstances affecting the prosecutor’s
7
ability to calculate the amount of restitution may be a factor in
finding good cause for the late determination.”); see also Perez,
¶ 16, ___ P.3d at ___ (same).
¶ 15 Thus, reading “determined” in section 18-1.3-603(1)(b) to
mean “determined by the prosecuting attorney” would subject
prosecutors to conflicting standards for obtaining extensions of time
to submit the information supporting the requested amount of
restitution. Under section 18-1.3-603(1)(b), the prosecuting
attorney would need to show “good cause” to obtain an extension of
the “time period by which the restitution amount shall be
determined,” while under section 18-1.3-603(2), the same
prosecutor would need to demonstrate “extenuating circumstances
affecting the prosecuting attorney’s ability to determine
restitution.” Although section 18-1.3-603 is unclear, the general
assembly surely did not intend to impose two different tests on
prosecuting attorneys to obtain the same relief.
¶ 16 We respectfully disagree with the dissent that People v.
Knoeppchen, 2019 COA 34, ¶ 27, ___ P.3d ___, ___, stands for the
proposition that every extension of time for a prosecutor’s deadline
to present information regarding restitution automatically
8
constitutes good cause to extend the court’s deadline to determine
restitution. The analysis of section 18-1.3-603(1)(b) in Knoeppchen
was dicta because the division ultimately determined that the
defendant’s motion to vacate the restitution order was time barred.
Id. at ¶ 28, ___ P.3d at ___.
¶ 17 To the extent that the division in Knoeppchen said that an
order extending a prosecutor’s time to seek restitution always
constitutes good cause under section 18-1.3-603(1)(b), we
respectfully decline to follow the decision. People v. Smoots,
2013 COA 152, ¶ 20, 396 P.3d 53, 57 (“We are not obligated to
follow the precedent established by another division, even though
we give such decisions considerable deference.”), aff’d sub nom.
Reyna-Abarca v. People, 2017 CO 15, ¶ 20, 390 P.3d 816. Such an
analysis would do more than merely interpret
section 18-1.3-603(1)(b); it would rewrite the statute.
¶ 18 We also part ways with the dissent’s assertion that our
reasoning is irreconcilable with the line of cases holding that a
sentence is illegal when it does not address restitution. If this were
correct, then the ninety-one-day deadline in section
18-1.3-603(1)(b) would be meaningless and trial courts would have
9
no time limit to determine restitution prior to any appeal. See
People v. Turecek, 2012 COA 59, ¶ 23, 280 P.3d 73, 77 (holding that
the court will not interpret the restitution statute to render its
deadlines meaningless).
¶ 19 The ninety-one-day deadline does not apply to determinations
of restitution following an appeal and remand. See McCann,
122 P.3d at 1088 (noting that the trial court may conclude on
remand that, upon the pre-appeal deadline for the People’s
restitution motion, there was no evidence from which the court
could conclude that the victim had suffered a pecuniary loss). Our
decision does not mean that a trial court would be required to enter
a restitution award of zero if this court remanded the case after
determining that the trial court had entered an illegal sentence by
disregarding restitution. See People v. Rockne, 2012 COA 198,
¶ 18, 315 P.3d 172, 177 (“[W]e interpret the restitution statute as
applying its [ninety-one] day period of limitation only to efforts to
procure an initial order of restitution.”).
10
B. The Tension Between the Ninety-One-Day Deadlines in
Subsections (1)(b) and (2) of Section 18-1.3-603
¶ 20 The trial court’s written order raised a good question: How can
a district court be expected to order restitution within ninety-one
days under section 18-1.3-603(1)(b) if the prosecution needs the full
ninety-one days under section 18-1.3-603(2) to submit the
information supporting its restitution request? Our answer is that
if the prosecution needs the full ninety-one days (or more) to
complete its request for restitution under section 18-1.3-603(2),
that in itself could constitute “good cause” for the trial court to
extend its restitution ruling beyond the ninety-one-day deadline
under section 18-1.3-603(1)(b).
¶ 21 But a district court’s finding of good cause must rest on the
specific facts of the case and not merely on the General Assembly’s
decision to set the same deadline for a district court’s determination
of the amount of restitution and the prosecuting attorney’s
presentation of the information supporting its restitution request.
“[I]f the language in a statute is clear and unambiguous, we give
effect to its plain meaning and look no further.” Cowen v. People,
2018 CO 96, ¶ 12, 431 P.3d 215, 218.
11
¶ 22 The practical problem that the trial court identified requires a
legislative, and not a judicial, fix. It is not our role to blue-pencil
inartfully drafted sections of the Colorado Revised Statutes. See
Ray v. People, 2019 COA 24, ¶ 13, 456 P.3d 54, 57 (“We may not
add or subtract words from a statute.”).
C. Application to this Case
¶ 23 Weeks was sentenced on February 13, 2018. The prosecution
requested its interim amount of restitution just nine days later.
Weeks filed his objection twenty-three days later. The prosecution
did not file a reply brief by the March 24 deadline. Neither party
requested a restitution hearing. That left the trial court fifty-two
days to rule on the filings before the ninety-one-day deadline on
May 15, 2018. Regardless of the briefing schedule the court had
previously set, the briefing was complete long before the
ninety-one-day deadline.
¶ 24 So the next question is whether “good cause” existed to extend
the ninety-one-day deadline under section 18-1.3-603(1)(b). In its
ruling in January 2019, the trial court found good cause based on
the “briefing and hearing procedure created at the time of
12
sentencing.” The trial court’s briefing and hearing procedure
created at the time of sentencing was as follows:
I will leave restitution open for 91 days. If a
motion is filed, any response should be filed
within 28 days and any reply within seven. If
anyone wants a hearing, the request needs to
be made in the pleadings. If no request is
made, I’ll rule on the pleadings.
¶ 25 The court’s statement that it would “leave restitution open for
91 days” could be construed as referring to the ninety-one-day
deadline to order restitution under section 18-1.3-603(1)(b). But
regardless, assuming (as the trial court later found) that the court’s
statement gave the prosecution ninety-one days to file its restitution
motion, the prosecution’s motion would have been due by May 15,
2018; Weeks’s response would have been due no later than June
12, 2018; and the prosecution’s reply would have been due no later
than June 19, 2018.
¶ 26 Significantly, there is no dispute that the trial court possessed
sufficient information to fix the amount of restitution at $524.19
before the deadline set forth in section 18-1.3-603(1)(b). Nor is
there disagreement that the court could have left “restitution open”
13
for less than ninety-one days so that it could have met section
18-1.3-603(1)(b)’s deadline without a finding of “good cause.”
¶ 27 After the completion of that briefing schedule on June 19,
2018, more than four months passed until Weeks alerted the court
in late October 2018 that it had still not determined restitution.
And more than seven months passed from June 19, 2018, until the
trial court ordered restitution in January 2019. The trial court’s
ruling did not explain, and the record does not show, what good
cause, if any, existed for that inordinate delay. See People v. Gillett,
629 P.2d 613, 618 n.9 (Colo. 1981) (“Good cause generally means a
substantial reason amounting in law to a legal excuse for failing to
perform an act required by law.”). We will not infer the existence of
good cause in the absence of such an explanation. See Harriman v.
Cabela’s Inc., 2016 COA 43, ¶ 77, 371 P.3d 758, 767 (holding that
appellate courts may not engage in factfinding).
¶ 28 Thus, we must reverse under the circumstances and the plain
language of section 18-1.3-603(1)(b).
¶ 29 In so ruling, we recognize that the prosecution’s initial motion
for an “interim amount” of restitution left open the possibility that it
might later request additional restitution. However, the trial court’s
14
decision regarding good cause under section 18-1.3-603(1)(b) was
silent on whether the prosecution needed more time to investigate
additional bases for restitution. And the prosecution never
requested any additional restitution. Under the circumstances, the
district court could have ordered the interim amount of restitution
within the ninety-one-day period under section 18-1.3-603(1)(b),
while specifically reserving its right to order additional restitution
beyond the ninety-one-day period if the prosecution made a
sufficient showing of “good cause” under section 18-1.3-603(1)(b) or
“extenuating circumstances” under section 18-1.3-603(2). See
Meza, ¶¶ 9-16, 415 P.3d at 306-09 (a district court may order a
specific amount of restitution while specifically reserving its right to
determine at a later time the final amount of restitution). The court
did not do so.
IV. Conclusion
¶ 30 The restitution order is vacated.
JUDGE FOX concurs.
JUDGE BERGER dissents.
15
JUDGE BERGER, dissenting.
¶ 31 I agree with my colleagues that courts are not roving
commissions to fix defective statutes. Indeed, I recently authored
two decisions for divisions of this court that refused to rewrite
statutes to correct perceived legislative errors. People v. Ramirez,
2018 COA 129; Ray v. People, 2019 COA 24.
¶ 32 In the first, the division rejected the dissent’s attempt to
rewrite a criminal statute, criminalizing conduct that almost
everyone would agree should be criminalized but was not. Ramirez,
¶¶ 30–32 (“While the result mandated by the statutory language
likely is undesirable to almost everyone, that does not give us a
license to improve or rewrite the statute.”). A variety of constraints
counseled against a judicial rewrite and required us to vacate the
conviction.
¶ 33 In the second case, the plain language of a statute required
reports of court orders of mental health commitments to be
reported to government agencies to prevent those persons from
purchasing firearms. Ray, ¶ 3. But the statute only authorized
reports of mental health commitments that were made by court
orders. Id. at ¶ 20. The plain language of the statute simply did
16
not encompass reports other than by court order, so the statute
had to be applied as written — even though, in all likelihood, the
legislature intended otherwise. Id. at ¶ 23.
¶ 34 This case is different. The differences convince me that the
majority is wrong. I therefore respectfully dissent.
I. The Restitution Statute Should be Liberally and Reasonably
Construed to Accomplish its Legislative Objective
¶ 35 We are tasked with liberally construing the restitution statute
to accomplish the legislative objective of compensating crime
victims for the losses they suffered. People v. McCann,
122 P.3d 1085, 1087 (Colo. App. 2005). Thus, divisions of this
court have concluded that the ninety-one-day period is not a
jurisdictional bar to entry of a restitution order. People v. Harman,
97 P.3d 290, 293 (Colo. App. 2004). District courts have not only
“the authority, but the obligation, to order restitution.” People v.
Knoeppchen, 2019 COA 34, ¶ 21.
¶ 36 There is a reasonable way to read the statute to accomplish
the legislative objective: when a court extends the time for the
prosecutor to seek restitution, that extension implicitly constitutes
good cause for the trial court to decide the motion outside of the
17
prescribed ninety-one-day period. The majority asserts that the
trial court did not adequately explain why it delayed entering the
order.
¶ 37 People v. Knoeppchen demonstrates why a more detailed
explanation of good cause is unnecessary. There, the defendant
argued that the district court failed to make a finding of good cause
before permitting the prosecution’s late request for restitution. Id.
at ¶ 22. A division of this court reasoned that “nothing in the
statute explicitly requires the court to make an oral or written
finding of good cause; rather, the statute merely requires good
cause to be shown.” Id. at ¶ 25. The division also concluded that
the good cause showing need not be made at any particular time. 1
Id. at ¶ 26.
¶ 38 As Chief Judge James B. Boyd cogently observed in his order
granting restitution in this case, it is senseless to construe this
statute to bar restitution when the court delays in entering the
1 So, under Knoeppchen, a court may find good cause even after the
entry of an untimely restitution order. People v. Knoeppchen,
2019 COA 34, ¶ 26. This analysis opens another, less-drastic
disposition for this case — if the majority is concerned with the trial
court’s good cause finding, then it should remand to the trial court
for a better explanation.
18
order in a case like this. If, as here, a trial court grants the
prosecutor an additional ninety-one days after the date of
sentencing to request restitution, isn’t that, at a minimum, good
cause for the court to decide the matter after the ninety-one-day-
period expires? “[W]here the prosecution timely provides
information to the court on or just before the ninety-first day, it will
usually be impossible for the district court to rule on the restitution
request within the same period.” Knoeppchen, ¶ 22 n.4. Obviously,
the court needs time to decide the motion after it is filed and any
briefing is completed. This is sufficient good cause for delaying an
entry of restitution under the statute.
II. The Majority’s Construction Leads to an Absurd Result
¶ 39 “We presume that the General Assembly intends a just and
reasonable result when it enacts a statute, and we will not follow a
statutory construction that defeats the legislative intent or leads to
an unreasonable or absurd result.” People v. Vinson, 42 P.3d 86,
87 (Colo. App. 2002).
¶ 40 “Although we must give effect to the statute’s plain and
ordinary meaning, the General Assembly’s intent and purpose must
prevail over a literalist interpretation that leads to an absurd
19
result.” People v. Kailey, 2014 CO 50, ¶ 13 (quoting Lagae v.
Lackner, 996 P.2d 1281, 1284 (Colo. 2000)). Thus, we may reject
interpretations of statutes when “the resultant absurdity is ‘so gross
as to shock the general moral or common sense.’” Dep’t of Transp. v.
City of Idaho Springs, 192 P.3d 490, 494 (Colo. App. 2008) (quoting
Crooks v. Harrelson, 282 U.S. 55, 60 (1930)).2
¶ 41 Here, the majority’s decision leads to an absurd result that the
legislature did not intend.
¶ 42 The majority’s unwarranted prohibition on an implied finding
of good cause to extend the ninety-one-day period is plainly
inconsistent with the legislative intent of awarding restitution to
crime victims. Nothing in the statute prohibits an implied
extension of the time for ruling on the motion. The legislature
intended trial judges to decide restitution in a timely fashion; the
legislature could not have intended that no restitution would enter
if no decision issued in ninety-one days. Simply put, the majority’s
disposition prevents a crime victim from receiving restitution that is
2 And further, the General Assembly has, by statute, told us that
“[i]n enacting a statute, it is presumed that . . . [a] just and
reasonable result is intended.” § 2-4-201(1)(c), C.R.S. 2019; see
also § 2-4-203, C.R.S. 2019.
20
not only timely requested by the prosecutor, but also conceded by
the defendant.3
III. The Majority’s Construction is Irreconcilable
With This Court’s Precedent
¶ 43 The majority’s judgment is also irreconcilable with the line of
cases from this court that hold that a sentence is illegal when it
does not address restitution. See, e.g., Knoeppchen, ¶ 18. These
cases recognize that “in all cases in which a defendant’s criminal
conduct has caused pecuniary damages to a victim, the trial court
is required to order the defendant to pay restitution and to fix the
amount of such restitution as part of the judgment.” McCann,
122 P.3d at 1087.
¶ 44 These cases remanded to the trial court to address restitution
and correct the illegal sentence, often years after sentence is
imposed. People v. Dunlap, 222 P.3d 364, 368 (Colo. App. 2009)
(“[W]e must remand this case to the trial court for the consideration
and fixing of restitution under the statute that was applicable at the
3 A reasonable argument can be made that the defendant waived
any objection to the entry of the restitution order, but I need not
reach the doctrine of waiver given the availability of a patently
reasonable construction of the statute that validates the restitution
order.
21
time defendant was originally sentenced.”); People v. Smith,
121 P.3d 243, 251 (Colo. App. 2005) (“Because defendant’s
sentence was illegal, the trial court did not violate defendant’s right
to be free from double jeopardy when it ordered restitution on
remand.”).
¶ 45 If the majority’s analysis were correct, the only possible
disposition in those cases would have been to direct the trial court
on remand to enter a restitution award of zero. And even this result
is legally suspect because trial courts can only enter “no order for
the payment of restitution” when the court makes “a specific finding
that no victim of the crime suffered a pecuniary loss.”
§ 18-1.3-603(1)(d), C.R.S. 2019; McCann, 122 P.3d at 1087. Here,
it is undisputed that the victim suffered pecuniary loss that was
caused by Weeks.
¶ 46 To combat this contradiction with our prior precedent, the
majority asserts that “[t]he ninety-one-day deadline does not apply
to determinations of restitution following an appeal and remand.”
Supra ¶ 19. In support of this assertion, the majority cites People v.
Rockne, 2012 COA 198, but that case merely held that the statutory
deadline did not limit the prosecution’s ability to seek additional
22
restitution after a prior timely award was already entered. Id. at
¶ 18. Rockne does not address the situation like those in Dunlap
and Smith, where an illegal sentence must be corrected because it
never included a restitution order. But more importantly, because
the assertion that the ninety-one-day deadline does not apply to
determining restitution on remand has no statutory basis, it
seemingly runs afoul of the majority’s own prohibition against
adding words to statutes. Supra ¶ 22.
¶ 47 The result of the majority opinion is this: When a trial court
entirely ignores restitution, and the issue is appealed, the error
must be corrected on remand without regard to the expiration of the
ninety-one-day period. But when a restitution award is granted on
a timely filed request, the award must be vacated when the court
does not expressly find good cause to make its ruling after the
ninety-one-day period, or when the finding of good cause is cursory.
That makes no sense.
IV. The Majority’s Decision Will Have Harmful Real-World
Consequences
¶ 48 Finally, the majority opinion leaves prosecutors in uncharted
waters. By the plain terms of the statute, prosecutors fulfill their
23
responsibility to seek restitution by filing a motion either before
sentencing or, if information is not readily available, within
ninety-one days of sentencing. § 18-1.3-603(2). But no longer.
Now, under the majority’s approach, prosecutors must hound trial
courts to rule on the motion (or to state explicitly why they are not
doing so) before the ninety-one-day period expires. Does the
majority opinion mean that, after the ninety-one days, prosecutors
must timely appeal the implicit denial of their restitution order?
Seemingly, yes.
¶ 49 The reality is that many district court judges face crushing
caseloads that inevitably delay the entry of orders. This is good
enough a reason why we should not be encouraging prosecutors to
pepper courts with more motions in the lead up to the ninety-one-
day deadline. This is also good enough reason why neither the
General Assembly nor the supreme court in its rulemaking capacity
has placed fixed time limits for the adjudication of various motions
or other matters by trial courts; the majority’s inflexible
construction of this statute does exactly that.
¶ 50 In the end, if the majority’s opinion stands, either because the
General Assembly does not promptly fix the statute, or the supreme
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court does not intervene, grave harm will be done to crime victims
— harm that the restitution statute was explicitly intended to
remedy. And although the restitution award in this case is
relatively modest, that will not always be the case.
¶ 51 For all these reasons, I would affirm the trial court’s order
awarding restitution. I respectfully dissent.
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