How Restitution is Calculated and Ordered in Colorado Criminal Cases

At times an order of restitution in Colorado can have as great an impact on a Defendant as the original criminal conviction. Also- if the person has received a deferred judgment or similar temporary type plea bargain – non payment of restitution is often used by the prosecution to” revoke the deal” so to speak. Therefore understanding all aspects of restitution orders in Colorado is critical. This is another web page intended to assist in that way.

What follows explains the flow of how restitution is determined, assessed, collected, and distributed under current law.

After a case is filed with the district attorney, the Victim/Witness Assistance Unit sends restitution affidavits to all identified victims. The victims are responsible for providing the appropriate information and returning the affidavits to the district attorney’s office. The district attorney’s office analyzes the affidavits and produces a motion and order for restitution which is then filed in the criminal case file.

Prior to sentencing, a pre-sentence investigator in the Probation Department prepares a pre-sentence investigation report (PSIR) which includes information on the defendant’s criminal history as well as on the current conviction, the impact on the victim, and any amount of restitution owed. The PSIR is forwarded to the judge for sentencing and a restitution order.

After the judge enters an order of restitution, the order is recorded on the offender’s mittimus (final sentencing order) and the order is entered as a receivable on the statewide integrated court computer system. Offenders are ordered to pay restitution through the registry of the court (clerk of the court).

Amounts paid and balances are maintained in the system. The method of collecting restitution and forwarding it to the court differs depending upon the state agency responsible for supervising or monitoring the offender.

— As a condition of probation, offenders are required to make court-ordered restitution payments. Probation officers are responsible for making sure probationers maintain conditions of probation. However, each judicial district is staffed with collection investigators who conduct financial interviews with and evaluations of offenders, set up and monitor payment schedules, and enforce orders for payment.

When an inmate is sentenced to the DOC the mittimus that accompanies the offender indicates the amount of restitution owed. Upon admission to the DOC, an individual restitution account is created for the inmate and the inmate designates the amount of money that will be credited to that account. The DOC, on a quarterly basis, transfers moneys from the account to the court clerk for distribution.

As a condition of parole, parolees are required to make court-ordered restitution payments. Parole officers are responsible for making sure parolees maintain conditions of parole. Parole officers are also responsible for collecting restitution payments from parolees and transferring those payments to the clerk of the court.

Offenders in community corrections facilities are required to maintain full-time employment and turn in their paychecks to be budgeted for restitution. Clients sign a contract in which they agree to pay the full amount of restitution and which indicates the percentage of each paycheck that will go towards that end. The community corrections facility forwards the payments to the clerk of the court.

Judges do not always have the necessary information needed to adequately address the issue of restitution. When the district attorney files a case, the victim/witness unit in the DA’s office sends a packet of forms including a victim impact statement to the victim. The victim is to fill out the forms to explain how the crime affected the victim financially, physically, and emotionally. The DA includes the victim impact statement as part of the crime file which eventually goes to the court at sentencing. In some but not all cases, the victim impact statement is also forwarded to the probation officer who is assigned the task of writing the pre-sentence investigation report.

The pre-sentence investigation report contains a section on victim impact and restitution. In some cases, the victim does not return the victim impact statement in a timely manner or does not return the statement at all and the DA, the court, and the probation department do not have adequate information on which to determine an order of restitution. In other cases, depending upon the jurisdiction (all jurisdictions employ differing processes to accomplish this task), the probation officer may never get a copy of the victim impact statement and so the information on victim impact in the pre-sentence investigation report is lacking.

This confuses the entire process because – as the information is lacking- the court does not adequately address the issue of restitution and the Defendant may receive untimely, ambiguous and unfair instructions from the probation department.

Sometimes the Courts generally do not take into account a victim’s ongoing expenses, such as medical bills, as part of the order of restitution. As a way around this problem, some courts, at sentencing, defer the order of restitution to a “restitution hearing” at a later date (not all courts employ this practice). Also, in some cases, court personnel have accidentally neglected to put the order of restitution on the mittimus and so probation officers and DOC personnel do not know to collect restitution.

In many cases, district attorneys may allow defendants to plead guilty to charges that are lesser than the original charges. In other cases, more serious charges are dropped for a guaranteed conviction on lesser charges. This also may confuse the Defendant and the Courts.

In these situations even if the offender is not convicted of the crime committed and may not be guilty – the Courts may seek to revoke the Defendant’s probation for non payment of restitution – NOT OWED.

The DA for the 18^th Judicial Districtsummarized the basics for calculating restitution in the following excerpts:

In general, losses that may be claimed as restitution include, but are not limited to:

• any monetary loss suffered by a victim that can be reasonably calculated
• medical bills
• counseling expenses
• all out-of-pocket expenses
• interest
• anticipated future expenses
• rewards paid by victims

• Pain and suffering
• Loss of enjoyment of life
• Loss of future earnings
• Punitive damages (i.e. treble damages)

Restitution is an order of the court. Once the offender has been sentenced and the court has ordered the amount to be paid as restitution, a payment schedule is established that details when payments must be made to the court to be distributed to the victim. This payment plan includes the restitution amount to be paid to the victim once the offender has paid the statutorily mandated amounts for Victim Compensation Cost and Victim/Witness Assistance Surcharge.

Other court fines, costs, and fees are paid after restitution to the victim is paid in full. Please understand that the collection of restitution can take place over a length of time, particularly on large balance cases, and depends on a number of factors such as the defendant’s financial circumstances, ability to maintain employment, status of incarceration, etc.

If a defendant fails to make timely payments, there are various measures the court, through the Collections Investigator, can take. These include, but are not limited to, the following:

• Demand for payment
• Late fees assessed
• Further investigation into defendant’s finances
• Wages/assets subject to garnishment or attachment
• Property liens
• Intercept of state income tax refund, lottery winnings, and other monies disbursed by the state
• Referral of account to outside collection agency
• Suspension of driver’s license (traffic related cases)
• Probation revocation proceeding
• Warrant for defendant’s arrest may be issued
• Victim also has the right to pursue collections on his/her own (see below)

As provided in Section 16-18.5-107, C.R.S.,a victim can pursue collections of restitution from the defendant in the same manner as collecting a civil judgment. This may be done through the existing criminal case (contact the court to confirm procedures).

If they choose to pursue collections on their own, they need to notify the court in the criminal case, in writing of your intent.

Once the court has received notice that the victim is pursuing his/her own collection efforts, the victim may apply to the sentencing court for issuance of any of the following that, if provided, are done without cost to the victim:

• Certified copies of the Transcript of Judgment (the order for restitution)
• Attachment of Earnings (pursuant to Section 16-18.5-105(3)(b), C.R.S.)
• Writs of execution, attachment or other civil process to collect upon a judgment pursuant to Article 52 of Title 13, C.R.S.

Here is the relevant law in Colorado on the collection of Restitution: by victims – § 16-18.5-107.

1. Any victim in whose name a restitution order has been entered shall have a right to pursue collection of the amount of restitution owed to such person in such person’s own name. Any victim who wishes to collect restitution pursuant to the provisions of this section shall first deliver to the clerk of the court or, if the defendant was sentenced to the department of corrections, to the executive director of the department of corrections a notice of intent to pursue collection. Upon receipt of notice of intent to pursue collection, the court, the collections investigator, and the department of corrections shall cease all attempts to collect the restitution due to the person or persons named in the notice, except that the collections investigator may still assist the victim in the victim’s effort. The filing of a victim’s intent to pursue collection and a victim’s subsequent collection efforts do not alter a court’s order that restitution is a condition of the defendant’s probation, and such probation may still be revoked by the court upon a finding of failure to pay restitution.
2. Any victim who has filed a notice of intent to pursue collection may apply to the sentencing court for issuance of any of the following that, if provided, shall be provided without cost:
   1. One or more certified copies of the transcript of the order for restitution;
   2. An order that a portion of the defendant’s earnings be withheld pursuant to section 16-18.5-105(3) (b);
   3. A writ of execution, writ of attachment, or other civil process to collect upon a judgment pursuant to article 52 of title 13, C.R.S.
3. If the victim chooses to record a copy of the transcript with a clerk and recorder or with the secretary of state, the victim may do so without charge.
4. A victim may withdraw his or her intent to pursue collection by filing a notice of such withdrawal with the person to whom the notice of intent was served pursuant to subsection (1) of this section. Such notice shall state the amount, if any, of restitution collected by the victim. Upon receipt of a notice of withdrawal, the collections investigator or the department of corrections shall pursue collection of the restitution pursuant to this article.
5. The judicial department shall develop informational brochures for victims explaining the process of restitution and the victim’s rights and remedies.