Colorado Court of Appeals - 4-12-12 - People v. Turecek

People v. Turecek     Restitution

Facts: Mr. Turecek torched his own home. Apparently, he did not own the home outright as the prosecution charged him with 1° arson and 4° arson. Mr. Turecek pled to 4° arson. On the day of sentencing, some representative from an insurance company told the trial court the insurer only had an estimate at the time but could “easily” get the trial court a definite amount within 90 days. The Court told the prosecution to follow up with definitive numbers on the restitution within ninety days. Further, the Court commented it needed an amended motion as the prosecution’s initial motion was inaccurate because the insurer was still investigating. The prosecution failed, and some nine months later filed a motion with Court to grant the original, inaccurate, incomplete motion for restitution. The trial court obliged.

Issue: Where the prosecution showed no good cause, whether the trial court abused its discretion by granting a restitution request well be beyond the 90-day statutory deadline?

Held: Yes.

Reasoning: In Colorado, the statute, C.R.S. §18–1.3–603(1)(b), allows the prosecution to seek up to ninety days to determine the restitution.  The statute also allows an enlargement of time beyond ninety days, if the prosecution shows good cause to the trial court. Here, the Court of Appeals determined the prosecution did neither, and reversed the restitution order. Of the litany of complaints the prosecution claimed for failing miserably at its job, two were significant – one, the error, if any, was harmless, and two, the U.S. Supreme Court the U.S. Supreme Court in Dolan v. United States, –––U.S. ––––, 130 S.Ct. 2533 (2010), allowed for an extension of time under similar circumstances. 

Regarding the harmless error, the prosecution claimed that Mr. Turecek knew restitution was coming and the trial court held a hearing on the restitution where he appeared and where counsel represented him.  The Court of Appeals held because the statute mandates 90-days for restitution and includes a good cause section to enlarge that time, the error cannot be considered harmless. The Court of Appeals seemed particularly irritated that the prosecution lazed around for some nine months, disregarded the trial court's order, and never filed an accurate motion to resolve the restitution.

Regarding U.S. Supreme Court in Dolan, the Court of Appeals quoted entirely from the dissent in that 5-4 decision, and came back around to the fact this is a state, not a federal statute. Whatever persuasive authority Dolan may be, the Court of Appeals held against the prosecution. Panel: Judge Gabriel wrote the opinion with Judges Roy and Terry concurring.
>Link to People v. Turecek here<