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- Understanding the Crime of Stalking in Colorado – A Case In Point
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- Colorado Domestic Violence Cases – How Do I Get Off Of This Ride? Discharge Standards, Risk Categories and the Completion of Court Ordered Mandated Treatment – Part I
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Colorado Criminal Law – Restitution Is For ALL Crimes – Not Just Plea Bargained Convictions
By H. Michael Steinberg Colorado Domestic Violence Criminal Defense Lawyer
Colorado Criminal Law – Restitution Is For ALL Crimes – Not Just Plea Bargained Convictions
Colorado Criminal Law – Restitution Is For ALL Crimes – Not Just Plea Bargained Convictions – It is mistakenly believed by many that it is the charge or charges that end up as convictions that determines whether you pay restitution in you Colorado criminal case. This is not the law as explained in this article.
In Colorado A Victim Entitled To Restitution Is Determined By The Defendant’s Conduct Not The Final Conviction
A “victim” as defined under Colorado law is defined as someone who has suffered damage or injury based on the actual conduct of the Defendant NOT the charge that ends up in the conviction column as opposed to those dismissed as a result of a plea bargain – or charges that end up in the dismissed column.
To Understand This Important Point – Let’s Look At Some Critical Colorado Restitution Laws
The following laws are fundamental to Colorado Restitution Law:
Every order of conviction . . . shall include consideration of restitution.
§ 18-1.3-603(1), C.R.S.Restitution’ means any pecuniary loss suffered by a victim and includes . . . losses or injuries proximately caused by an offender’s conduct and that can be reasonably calculated and recompensed in money. § 18-1.3-602(3)(a), C.R.S.
A “victim” for purposes of restitution is “any person aggrieved by the conduct of an offender . . . .” § 18-1.3-602(4)(a).
This includes, “any person against whom any . . . offense has been perpetrated or attempted.” § 18-1.3-602(4)(a)(I).
Understanding How This Fits Together To Determine Restitution Orders
Colorado’s restitution statutes define a victim, not based on the charges which “stick” (the charge of which the defendant was convicted) – but in direct relation to a Defendant’s “conduct.”
Therefore, contrary to what some may believe, it is NOT the criminal conviction that establishes a Defendant’s culpability for restitution orders. Restitution is based on the Defendant’s actual criminal acts whether he or she has pled guilty to specific counts in the case or not.
A Court may even order a Defendant to pay restitution for losses sustained as a result of a Defendant’s uncharged criminal conduct and may even order in some extreme cases restitution for criminal conduct for which a Defendant has been acquitted.
The Colorado restitution laws no longer limit restitution only to persons injured by the conduct alleged as the basis for the conviction.
The Broad Discretion Of A Colorado Judge To Order Restitution At A Sentencing Hearing
The time to press hard as a Colorado criminal defense lawyer – to aggressively advocate for one’s client for an order reflecting the minimum amount of restitution – is AT the criminal restitution hearing. The reason is that an appeal of the Sentencing Court’s order is almost certainly going to be denied.
A Colorado Sentencing Court has extraordinarily broad discretion in determining and setting the terms and conditions of a restitution order. Absent a clear abuse of the Judge’s broad discretion – that decision will not be reversed or altered on appeal absent an abuse of discretion.
An abuse of discretion occurs ONLY when the lower court misconstrues or misapplies the law. This is a very rare occurrence. Of there is support in the record for the amount of restitution ordered – it will be upheld.
Colorado Restitution Laws As They Apply To PROVING Restitution Sufficiency of the Evidence
Revisiting Some Basic Colorado Restitution Laws
Under Colorado Law (§ 18-1.3-602(3)(a), C.R.S. ) “Restitution” is:
…. “any pecuniary loss suffered by a victim and includes – but is not limited to – all out-of-pocket expenses . . . and other losses or injuries proximately caused by an offender’s conduct and that can be reasonably calculated and recompensed in money.”
The burden of proving the amount of restitution owed by a Defendant is on the prosecutor but that burden is not beyond a reasonable doubt (the burden to prove guilt at trial)but rather it is the much lower “civil” burden of proof … by a preponderance of the evidence.
A fact is established by a preponderance of the evidence when:
” upon consideration of all the evidence, the existence of that fact is more probable than its nonexistence.”
The prosecution must prove not only the amount of restitution owed but also that the victim’s losses were proximately caused by the Defendant – that is – those losses were attributable to the acts of the defendant.
“Proximate cause” in the context of restitution is defined as:
“…. a cause which in a natural and probable sequence produced the claimed injury and without which the claimed injury would not have been sustained.”
In attempting to meet the prosecutor’s burden of proof to prove an amount of restitution, the prosecution is not limited by the rules of evidence. CRE 1101(d)(3). Stated more simply, when compared to a trial where the rules of evidence are strictly enforced, the rules of evidence do not apply to a restitution hearing at or subsequent to the sentencing hearing.
Summary And Conclusion
If a prosecutor proves a victim of a crime is “aggrieved” by a Defendant’s conduct through the commission of a crime, even if a specific count – the charge reflecting that specific crime is dismissed – and therefore is not the precise charge to which a Defendant has pleaded guilty, restitution may be ordered and that order is enforceable.
Colorado Criminal Law – Restitution Is For ALL Crimes – Not Just Plea Bargained Convictions
If you found any of the information I have provided on this web page article helpful please click my Plus+1 or the Share buttons for Twitter and Facebook below so that others may also find it.
If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.
Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael at your side every step of the way – advocating for justice and the best possible result in your case.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”
You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado Criminal Law – Restitution Is For ALL Crimes – Not Just Plea Bargained Convictions.
Other Articles of Interest:
- Colorado Criminal Law: Attacking the Credibility of the Accused – Defendant – The Law
- FAQ: Colorado Criminal Firearms Laws – The Impact of Colorado Criminal Convictions On The Right To Bear Arms Under Federal Law
- Colorado Criminal Domestic Violence Sentencing Procedures and Law – What Happens In A Colorado Domestic Violence Sentencing Hearing
- Colorado Criminal Restitution Law – Collecting Unpaid Pre- & Post Judgement Interest – An Unfair Turn In The Law
- Colorado Criminal Law – Representing Victims and Witnesses in Criminal Court and Proceedings – The Rights of Victims and Witnesses
