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    Colorado Criminal Law – Revocation of Probation Based a Failure to Pay Restitution

    I am often asked this question is when a person is placed on probation and ordered to pay restitution and there is an inability to pay before the period of probation runs out – is probation revoked and the person punished?

    Here is the Statutory Law in Colorado:

    § 18-1.3-205.  Restitution as a condition of probation

    As a condition of every sentence to probation, the court shall order that the defendant make full restitution pursuant to the provisions of part 6 of this article and article 18.5 of title 16, C.R.S. Such order shall require the defendant to make restitution within a period of time specified by the court. Such restitution shall be ordered by the court as a condition of probation.

    …restitution “means any pecuniary loss suffered by a victim and includes but is not limited to all out-of-pocket expenses, interest, loss of use of money, anticipated future expenses … and other losses or injuries proximately caused by an offender’s conduct.” Section 18-1.3-602 (3) (a), C. R. S.

    …the principal purpose of restitution to be to restore to victims of crime the value of that which they have lost as a result of the crime, rather than to punish the wrongdoer…

    ….section 18-1.3-205, mandates that the defendant “make full restitution.” Restitution is defined as “any pecuniary loss suffered by a victim… proximately caused by an offender’s conduct… that can be reasonably calculated and recompensed in money.” § 18-1.3-602(3)(a), C.R.S. 2009.

    .. “Victim” means “any person aggrieved by the conduct of an offender.” § 18- 1.3-602(4)(a), C.R.S. 2009.

    The following law – taken from a recent case explains the rule in Colorado:

    Here are the rules taken from well known cases in Colorado:

    1. “Probation is a privilege, not a right, and may be revoked if a probationer violates any condition of an order of probation.” People v. Moses, 64 P.3d 904, 906 (Colo. App.2002).

    2. There is a presumption that a probationer knows that violating any term of his probation could result in revocation. See People v. Zimmerman, 616 P.2d 997 (Colo. App.1980).

    3. The standard of proof required to prove a violation of probation is the preponderance of the evidence even though the breaching conduct may also be a criminal offense. See People v. Moses, supra.

    The Ability to Pay Restitution When on Probation in Colorado

    4. Before revoking a defendant’s probation based on his failure to pay restitution, a court must first make a finding that the defendant has the present ability to pay. See People v. Romero, 192 Colo. 106, 559 P.2d 1101 (1976); see also People v. Gore, 774 P.2d 877 (Colo.1989) (failure to make restitution payments does not automatically result in the revocation of probation).

    5. The requirement that the defendant have the present ability to pay “contemplates that

    (1) a job for which the probationer is qualified is available;

    (2) the job would produce an income adequate to meet his obligations;

    and

    (3) the probationer unjustifiably refuses to take it.” People v. Romero, supra, 192 Colo. at 108, 559 P.2d at 1102.

              “The reason for requiring that ability to pay be established Before probation can be revoked is to allow revocation only where the probationer unreasonably or willfully fails to comply with the terms of his probation.”

    The trial court must “find that the defendant had the ability to pay at the time the payments should have been made.”

    Options Available to the Colorado Collections Investigator If Restitution is Not Paid On Time

    Section 16-18.5-105(3) provides that when a defendant fails to make a payment of restitution within five days after the date the payment is due under a payment schedule established pursuant … the collections investigator may, among other remedies,

    • ask the clerk of the court to issue an attachment of earnings as provided in section 16-18.5-105(3)(b);

    • ask the clerk of court to court to issue a writ of execution, writ of attachment, or other civil process to collect the judgment as provided in section 16-18.5-105(3)(c);

    •ask the court to issue a notice requiring the defendant to appear before the court and show cause why the required payment or payments were not made as provided in section 16-18.5-105(3)(d);

    or

    • employ any method available to collect state receivables as provided in section 16-18.5-105(3)(e).

    If the collections investigator asks the court to issue a notice to show cause and the court finds that the defendant failed to make the missed or late payment or payments and was able to do so, the court may, among other things, revoke probation, extend the period of probation, or find the defendant in contempt and impose any authorized penalties for contempt.

    However, if the court finds that the defendant was not able to make the missed or late payment or payments, it may not impose those remedies. § 16-18.5-105(3)(d); see also People v. Stafford, 93 P.3d 572, 575 (Colo. App. 2004) (due process and section 16-18.5-105(3)(d)(I), C.R.S. 2008, prohibit revocation of probation based on defendant’s inability to pay restitution).

    The court must not make findings regarding whether a defendant has missed or has been late making one or more payments and, if so, whether defendant was able to make the payment or payments.

    A Court’s order extending defendant’s probation for failure to pay restitution must be based on findings of fact and conclusions of law in accordance with section 16-18.5-105(3)(d).


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    ___________________________
    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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