Colorado Court of Appeals - 3-15-12 - People v. Welliver

People v. Welliver            Restitution           

Facts: The prosecution claimed Mr. Welliver committed some fraud on his unemployment application, and as a result the state complained that it overpaid some seven thousand some odd dollars in unemployment. Mr. Welliver pled to a reduced charge and agreed to pay back the money. The District Court Judge, Judge Melonakis out in Adams County, did one better for the prosecution and the unemployment investigators - he imposed a 50% surcharge on top of the restitution. Judge Melonakis reasoned the statute, C.R.S § 8-81-101, called for the 50% surcharge. However, the prosecution did not charge Mr. Welliver under this specific statute. Instead, the prosecution charged Mr. Welliver under the general theft statute.

Issue: Whether the District Court abused its discretion in finding a 50% surcharge on the overpaid unemployment benefits applied?

Held: Yes.

Reasoning: The Court of Appeals looked at the definition of restitution under C.R.S. § 18-1.3-602(3)(a), and determined the 50% surcharge was neither a cost to recover an out of pocket expense nor was Mr. Welliver the proximate cause for such a surcharge. The District Court opined that the 50% surcharge amounted to part of the compensatory costs of recouping the funds. However, the Court of Appeals held the District Court abused its discretion. The Court of Appeals reversed the 50% surcharge portions of the restitution order. The Court of Appeals pointed out the state and prosecution, in all of their worldly wisdom, chose not to prosecute Mr. Welliver under the specific statute, C.R.S § 8-81-101, which allowed a 50% surcharge on the overpaid amount . Thus, the District Court did not have the authority or discretion to impose the 50% surcharge as part of the restitution order (side note: the unemployment compensation statute does not mandate criminal charges for fraudulent acts; the state could sue or pursue the loss through administrative law instead of hanging a felony on an indigent man).

>Link to People v. Welliver here<