By H. Michael Steinberg – Colorado Criminal Defense Lawyer
Introduction – Colorado Restitution Law – Extending Probation to Pay Unpaid Restitution
There are many Colorado criminal cases in which the restitution order – the amount of restitution ordered by the Judge – far exceeds the ability of a Defendant to make the total payments necessary to fulfill that Court’s order.
What happens to the restitution order at the end of the term of probation?
Defendants who cannot not pay the entire amount of restitution ordered – even when they had faithfully paid monthly the precise amount designated by the collections agent for the state for their many years of probation – formally faced either a probation violation hearing for not paying the full amount plus interest – or a kind of coerced “agreement” to continue their period of probation past the deadline for the end of probation – to make those additional payments… (sometimes for many more years).
The recent case by the Colorado Court of Appeals have added some desperately needed clarity to a muddled and unjust area of the law. The case – People v. Martinez, 2022COA142 (decided December 15, 2022) is an intelligent and just solution to this decades old problem of restitution orders for those sentenced to probation in Colorado that amount to unreasonable and unsustainable debts.
In Martinez, a division of the Colorado Court of Appeals posited two important issue concerning extending a Defendant’s probation where that Defendant has made regular restitution payments – (lawfully set out in a payment schedule – and properly established under Colorado Law – section § 16-18.5-105. Monitoring – Default – Penalties but, by the end if the term of probation, had not paid the full amount of restitution.
After the Martinez decision, Colorado law no longer authorizes an extension of probation (where a Defendant has made all the payments required under a payment schedule), simply because the restitution hasn’t been fully paid. These circumstances do not establish “good cause” to extend probation under under Colorado law.
In Martinez, the Court of Appeals REVERSED the Trial Court’s order extending the the Defendant’s probation and returned the case to the lower court with and Order to terminate the Defendant’s probation.
In the words of the Court:
Resolving Martinez’s appeal requires us to address two novel issues concerning a court’s authority to extend probation for failure to pay the full amount of restitution.
We first conclude that section § 16-18.5-105. Monitoring – Default – Penalties does not authorize an extension of probation where a defendant has made all the payments required under a payment schedule established under section 16-18.5- 104(4)(a)(I), simply because the restitution hasn’t been fully paid.
We also conclude that the circumstances of this case do not establish “good cause” to extend probation under section 18-1.3-204(4)(a), C.R.S. 2022.
The Important Facts From This Case Regarding Colorado’s Restitution Laws
1. Ms. Martinez pleaded guilty to felony vehicular assault and was sentenced her to four years of probation and ordered to pay over $150,000.00 in total restitution plus interest.
2. The Trial Court extended her probation based on her failure to pay the full amount of restitution at the end of her probationary period.
3. The Defendant had been properly placed on a payment schedule by a Colorado collections investigator who had properly and legally assessed her “ability to pay restitution” under Section 16-18.5-104(4)(a)(I), C.R.S. 2022.
4. Ms. Martinez faithfully made all of her required payments, BUT, (as is often the case under Colorado’s unreasonable and unjust interest rates), by the end of her initial four-year probationary term, the balance of her restitution judgment had actually increased – not decreased (because her payments hadn’t offset even the accrued interest and had not “touched” the principal of the face amount of restitution ordered).
5. The Trial Court extended her probation term for another five years, indicating that at the end of that period the Court “would review her progress toward paying off her restitution.”
6. Her initial obligation to pay restitution had ballooned from the original $150,000.00 to $188,000.00 notwithstanding that she was in compliance with the payment schedule.
7. The Court found that Martinez had the ability to continue making payments but not the ability to pay the full remaining amount of restitution.
The Relevant Colorado Restitution Laws That Apply
First, Section § 16-18.5-105. Monitoring – Default – Penalties governs in circumstances when a Defendant “fails to make a payment of restitution,” – NOT when a defendant fails to pay the full amount of restitution ordered.
Since Ms. Martinez had made her monthly payments, this subsection was not found to be applicable.
Second, the other relevant law – § 18-1.3-204 (2020) provides that a Court may increase the term of probation ONLY when:
1. “Good cause” is shown to extend the term;
2. Notice has been provided to the defendant, the district attorney, and the probation officer; and
3. A hearing has been held, (if the defendant or the district attorney requested one).
The Martinez Court concluded that the lower Trial Court had erroneoulsy found “good cause” to extend her probation. Since the $100.00 monthly payment did not even cover the interest it was “unrealistic to expect that, under her current circumstances, Martinez would ever be able to pay off the entirety of her restitution obligation.”
The Martinez Court held that “good cause” requires more than just the inability to pay the entire amount of restitution within the probationary period.
“Otherwise, the probation of any indigent defendant could be extended repeatedly and indefinitely, amounting to the functional equivalent of a lifetime sentence to probation, simply because of the defendant’s indigence.”
Another “Method” To Collect Restitution After Probation Has Ended Is Available To The State
Colorado law provides for another relevant “mechanism” for the continued payment of restitution” and that is a conversion of the amount of the remaining criminal restitution into a “civil judgment” after the Defendant’s probation sentence has been completed under Colorado Section 18-1.3-603(4)(a)(I)
This law provides provides that an order of restitution “is a final civil judgment in favor of the state and any victim” that “remains in force until the restitution is paid in full” and allows for collection of a restitution award “without the time and expense necessary to file an additional civil action.”
One appellate court judge shared these wise words:
“[T]he criminal justice system should not be employed to supplement a civil suit or as a threat to coerce the payment of a civil liability or to perform the functions of a collection agency.”
For more information on this issue – please follow this link.
A Closer Look At The Procedures Followed Under Colorado Section 16-18.5-105(3)(d)(III)
Under Colorado law, when a defendant fails to make payments under a restitution payment schedule, Section 16-18.5-105(3)(d) allows the collections investigator assigned to the case to request that the Trial Court issue a notice to “show cause” as to why the required payments weren’t made.
At a probation revocation hearing, a Trial Court cannot rely on Section 16-18.5-105(3)(d)(III) to extend probation solely because a Defendant failed to pay the full amount of restitution and had the ability to continue making payments.
Another section of the same statute – Section 16-18.5-105(3) – provides that the entire statute must be read as a whole. The issues is whether a Defendant “fails to make a payment of restitution,” not when a Defendant fails to pay the full amount of restitution ordered.
Simply stated, Martinez, as the “Defendant,” (under § 16-18.5-105(3)) had NOT failed to make an unexcused scheduled payment and should not be punished because she is poor.
Summary and Conclusion – Colorado Restitution Law – Extending Probation to Pay Unpaid Restitution
The Colorado Court of Appeals, under the facts of Martinez, held that the argument that an offender’s probationary status can act as an incentive to continue payments of restitution justifying the extension of probation is no longer a justification to extend that probation.
A Defendant on probation who has played by the rules should not face the potential exposure of being re-sentenced to “any term of incarceration that might have originally been imposed for the underlying offense.” See § 16-11-206(5), C.R.S. 2022.
That person should also not face any of the
other collateral consequences” of having the status of a person who is on probation. These consequences are very serious – among them possible restrictions on:
- employment opportunities,
- the imposition of curfews,
- the use of alcohol,
- the possession of weapons, and
- privacy restrictions, such as “consenting” to searches of their residence, vehicle, electronic devices, and other personal effects.
“[T} he probation of any indigent defendant could be extended repeatedly and indefinitely, amounting to the functional equivalent of a lifetime sentence sentence to probation, simply because of the defendant’s indigence.”
Colorado Criminal Law Colorado Restitution Law – Extending Probation to Pay Unpaid Restitution
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