The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY March 19, 2020

No. 19CA0255, People v. Weeks — Criminal Law — Sentencing — Restitution — Assessment of Restitution

A division of the court of appeals considers whether a trial

court may order restitution more than ninety-one days after a

defendant’s conviction without a finding of good cause or

extenuating circumstances for delaying its ruling, aside from the

prosecution’s request for additional time to seek restitution. Based

on the plain language of section 18-1.3-603, C.R.S. 2019, the

majority holds that courts must order restitution within ninety-one

days or make a sufficient finding of “good cause” or “extenuating

circumstances” to extend the statutory deadline. The mere fact that

the prosecution sought additional time to request restitution does

not automatically amount to good cause or extenuating

circumstances. The dissent would affirm, concluding that when a court

extends the time for the prosecutor to seek restitution, that

extension implicitly constitutes good cause for the trial court to

decide the motion outside of the prescribed ninety-one-day period. COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0255 Garfield County District Court No. 17CR75 Honorable James B. Boyd, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Benjamin Weeks,

Defendant-Appellant.

ORDER VACATED

Division VII Opinion by JUDGE LIPINSKY Fox, J., concurs Berger, J., dissents

Announced March 19, 2020

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Under the Colorado restitution statute, if a district court

decides at sentencing to defer its decision regarding the appropriate

amount of restitution, “the specific amount of restitution shall be

determined within the ninety-one days immediately following the

order of conviction, unless good cause is shown for extending the

time period by which the restitution amount shall be determined.”

§ 18-1.3-603(1)(b), C.R.S. 2019.

¶2 Defendant, Benjamin Weeks, appeals the trial court’s

restitution order, contending that the court erred by ordering

restitution more than eleven months after sentencing without good

cause for delaying its ruling. We agree. We therefore reverse the

order and remand for further proceedings.

I. Background

¶3 A jury found Weeks guilty of two counts of aggravated robbery

and two counts of menacing based on his robbery of a gas

station/convenience store.

¶4 At the sentencing hearing on February 13, 2018, the

prosecutor requested that restitution remain open. The trial court

granted the request:

1 I will leave restitution open for 91 days. If a motion is filed, any response should be filed within 28 days and any reply within seven. If anyone wants a hearing, the request needs to be made in the pleadings. If no request is made, I’ll rule on the pleadings.

¶5 Nine days later, the prosecution filed a motion requesting

$524.19 in restitution — $506.54 for the money Weeks stole during

the robbery and $17.65 in prejudgment interest. The prosecution

asked the court to order the $524.19 as an “interim amount”

because it was still investigating additional possible bases for

restitution. The prosecution did not request a restitution hearing.

¶6 Twenty-three days later, Weeks filed an objection to the

restitution motion. He argued, among other things, that the

victim’s sole loss was the $506.54 in stolen money and that the

court should not hold restitution open indefinitely based on the

prosecution’s claim that it may learn of additional losses in the

future. Weeks also did not request a restitution hearing.

¶7 Nothing happened on the restitution issue for the next

seven-and-a-half months. In late October 2018, Weeks filed a

motion for a status conference based on the pending restitution

motion and a pending motion for return of property.

2 ¶8 At a status conference in November 2018, the court set a

hearing on the pending motions for December 2018. At the

December 2018 hearing, the prosecution clarified that it was

seeking restitution only for the originally requested amount of

$524.19. In response, Weeks argued, among other things, that the

trial court no longer had authority to order restitution because the

ninety-one-day deadline in section 18-1.3-603(1)(b) had expired.

The court took the matter under advisement.

¶9 Following the hearing, Weeks filed a brief presenting further

argument on the ninety-one-day deadline issue.

¶ 10 In January 2019, more than eleven months after sentencing,

the court issued an order granting the $524.19 in restitution. In a

separate written order, the court explained why it was rejecting

Weeks’s argument that it no longer had the authority to order

restitution based on the ninety-one-day deadline in section

18-1.3-603(1)(b):

Applying the time frame in the statute requires the consideration of good cause. There is some tension in the statute about the 91-day time frame. Subsection (1)(b) of § 18-1.3-603 provides restitution “shall be determined” within 91 days. However, subsection 2 authorizes the Court to allow the People 91

3 days to submit information in support of a specific restitution amount. For the Court to lose the ability to fix an amount on the same day the People could file restitution information would deprive a defendant of any opportunity to respond to the information, deprive both parties of any opportunity to request a hearing and deprive the Court of any ability to consider the information beyond the moments between the filing of the information and the end of the day. To address these potential concerns, the Court in this case entered its usual order when allowing the People time to file restitution information. The Court imposed on the People the 91-day deadline imposed by the statute followed by time for a response from the Defendant and a reply by the People with the opportunity to request a hearing. Although the briefing was sooner completed in this case, the Court, at the time of sentencing, authorized more than 91 days to complete the determination of restitution. No objections were made to this procedure.

With respect to good cause for a longer time frame, Defendant is correct the Court has not uttered the term “good cause” to extend the time for restitution beyond 91 days. However, the Court concludes the Court’s briefing and hearing procedure created at the time of sentencing necessarily and implicitly established good cause for restitution to be determined beyond the 91-day period.

4 II. Standard of Review

¶ 11 The proper interpretation of the restitution statute is a

question of law that we review de novo. People v. Perez,

, ___ P.3d ___, ___. However, the issue of whether

good cause exists to extend the ninety-one-day deadline to

determine restitution under section 18-1.3-603(1)(b) is reviewed for

an abuse of discretion. See People v. McCann,

(Colo. App. 2005); People v. Harman,

(Colo. App.

2004). A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or when it misconstrues or

misapplies the law. People in Interest of D.L.C.,

,

___ P.3d ___, ___.

III. Analysis

A. The Time Limit for “Determining” Restitution Under Section 18-1.3-603(1)(b)

¶ 12 The People appear to suggest that the ninety-one-day deadline

for “determining” restitution under section 18-1.3-603(1)(b) may

refer not to a district court’s obligation to “determine” the

appropriate amount of restitution to order, but instead to the

5 prosecution’s obligation to “determine” the appropriate amount of

restitution to request.

¶ 13 We disagree. Colorado case law indicates that the

“determin[ation]” of restitution under section 18-1.3-603(1)(b) refers

to the district court’s obligation to order a specific amount of

restitution within ninety-one days, unless good cause exists to

extend that deadline. See People v. Belibi,

,

(explaining that section 18-1.3-603(1)(b) requires

that “the specific amount of restitution be set within ninety-one

days”) (emphasis added); Meza v. People,

,

(holding that section 18-1.3-603(1)(b) allows a

district court to “reserv[e] until a later date, within ninety-one days,

findings with regard to other victims or losses of which the

prosecution is not yet aware”) (emphasis added); Perez, ¶¶ 14-15,

___ P.3d at ___ (“If the court reserves the determination of

restitution, as it is authorized to do, restitution is to be fixed within

ninety-one days after the order of conviction, unless good cause is

shown for extending that time. . . . Because restitution was

ultimately awarded more than ninety-one days after the order of

conviction, a showing of good cause was required.”) (emphasis

6 added). Further, in Sanoff v. People,

(Colo. 2008), the

supreme court equated a trial court’s jurisdiction “to set an amount

of restitution” with the court’s jurisdiction “to determine the amount

of restitution.”

(emphasis added). It is no coincidence

that, in discussing the trial court’s jurisdiction, the supreme court

paraphrased section 18-1.3-603(1)(b)’s reference to “the restitution

amount shall be determined.”

¶ 14 Adopting the People’s interpretation would render section

18-1.3-603(1)(b) superfluous of the language in section

18-1.3-603(2) giving the prosecution ninety-one days to present

information in support of its restitution request. (We discuss that

provision further below.) Instead, those two statutory provisions

refer to distinct obligations. See Harman,

(“[T]he

restitution act contains standards both for the late provision of the

restitution amount to the court by the prosecutor (‘extenuating

circumstances’), § 18-1.3-603(2), and for the late determination of

the restitution amount (‘good cause’), § 18-1.3-603(1)(b). . . . [W]e

do not determine whether ‘extenuating circumstances’ are

comparable to ‘good cause.’ However, a reasonable reading of the

statute is that extenuating circumstances affecting the prosecutor’s

7 ability to calculate the amount of restitution may be a factor in

finding good cause for the late determination.”); see also Perez,

¶ 16, ___ P.3d at ___ (same).

¶ 15 Thus, reading “determined” in section 18-1.3-603(1)(b) to

mean “determined by the prosecuting attorney” would subject

prosecutors to conflicting standards for obtaining extensions of time

to submit the information supporting the requested amount of

restitution. Under section 18-1.3-603(1)(b), the prosecuting

attorney would need to show “good cause” to obtain an extension of

the “time period by which the restitution amount shall be

determined,” while under section 18-1.3-603(2), the same

prosecutor would need to demonstrate “extenuating circumstances

affecting the prosecuting attorney’s ability to determine

restitution.” Although section 18-1.3-603 is unclear, the general

assembly surely did not intend to impose two different tests on

prosecuting attorneys to obtain the same relief.

¶ 16 We respectfully disagree with the dissent that People v.

Knoeppchen,

, ___ P.3d ___, ___, stands for the

proposition that every extension of time for a prosecutor’s deadline

to present information regarding restitution automatically

8 constitutes good cause to extend the court’s deadline to determine

restitution. The analysis of section 18-1.3-603(1)(b) in Knoeppchen

was dicta because the division ultimately determined that the

defendant’s motion to vacate the restitution order was time barred.

Id. at ¶ 28, ___ P.3d at ___.

¶ 17 To the extent that the division in Knoeppchen said that an

order extending a prosecutor’s time to seek restitution always

constitutes good cause under section 18-1.3-603(1)(b), we

respectfully decline to follow the decision. People v. Smoots,

,

(“We are not obligated to

follow the precedent established by another division, even though

we give such decisions considerable deference.”), aff’d sub nom.

Reyna-Abarca v. People,

,

. Such an

analysis would do more than merely interpret

section 18-1.3-603(1)(b); it would rewrite the statute.

¶ 18 We also part ways with the dissent’s assertion that our

reasoning is irreconcilable with the line of cases holding that a

sentence is illegal when it does not address restitution. If this were

correct, then the ninety-one-day deadline in section

18-1.3-603(1)(b) would be meaningless and trial courts would have

9 no time limit to determine restitution prior to any appeal. See

People v. Turecek,

,

(holding that

the court will not interpret the restitution statute to render its

deadlines meaningless).

¶ 19 The ninety-one-day deadline does not apply to determinations

of restitution following an appeal and remand. See McCann,

(noting that the trial court may conclude on

remand that, upon the pre-appeal deadline for the People’s

restitution motion, there was no evidence from which the court

could conclude that the victim had suffered a pecuniary loss). Our

decision does not mean that a trial court would be required to enter

a restitution award of zero if this court remanded the case after

determining that the trial court had entered an illegal sentence by

disregarding restitution. See People v. Rockne,

,

(“[W]e interpret the restitution statute as

applying its [ninety-one] day period of limitation only to efforts to

procure an initial order of restitution.”).

10 B. The Tension Between the Ninety-One-Day Deadlines in Subsections (1)(b) and (2) of Section 18-1.3-603

¶ 20 The trial court’s written order raised a good question: How can

a district court be expected to order restitution within ninety-one

days under section 18-1.3-603(1)(b) if the prosecution needs the full

ninety-one days under section 18-1.3-603(2) to submit the

information supporting its restitution request? Our answer is that

if the prosecution needs the full ninety-one days (or more) to

complete its request for restitution under section 18-1.3-603(2),

that in itself could constitute “good cause” for the trial court to

extend its restitution ruling beyond the ninety-one-day deadline

under section 18-1.3-603(1)(b).

¶ 21 But a district court’s finding of good cause must rest on the

specific facts of the case and not merely on the General Assembly’s

decision to set the same deadline for a district court’s determination

of the amount of restitution and the prosecuting attorney’s

presentation of the information supporting its restitution request.

“[I]f the language in a statute is clear and unambiguous, we give

effect to its plain meaning and look no further.” Cowen v. People,

,

.

11 ¶ 22 The practical problem that the trial court identified requires a

legislative, and not a judicial, fix. It is not our role to blue-pencil

inartfully drafted sections of the Colorado Revised Statutes. See

Ray v. People,

,

, 57 (“We may not

add or subtract words from a statute.”).

C. Application to this Case

¶ 23 Weeks was sentenced on February 13, 2018. The prosecution

requested its interim amount of restitution just nine days later.

Weeks filed his objection twenty-three days later. The prosecution

did not file a reply brief by the March 24 deadline. Neither party

requested a restitution hearing. That left the trial court fifty-two

days to rule on the filings before the ninety-one-day deadline on

May 15, 2018. Regardless of the briefing schedule the court had

previously set, the briefing was complete long before the

ninety-one-day deadline.

¶ 24 So the next question is whether “good cause” existed to extend

the ninety-one-day deadline under section 18-1.3-603(1)(b). In its

ruling in January 2019, the trial court found good cause based on

the “briefing and hearing procedure created at the time of

12 sentencing.” The trial court’s briefing and hearing procedure

created at the time of sentencing was as follows:

I will leave restitution open for 91 days. If a motion is filed, any response should be filed within 28 days and any reply within seven. If anyone wants a hearing, the request needs to be made in the pleadings. If no request is made, I’ll rule on the pleadings.

¶ 25 The court’s statement that it would “leave restitution open for

91 days” could be construed as referring to the ninety-one-day

deadline to order restitution under section 18-1.3-603(1)(b). But

regardless, assuming (as the trial court later found) that the court’s

statement gave the prosecution ninety-one days to file its restitution

motion, the prosecution’s motion would have been due by May 15,

2018; Weeks’s response would have been due no later than June

12, 2018; and the prosecution’s reply would have been due no later

than June 19, 2018.

¶ 26 Significantly, there is no dispute that the trial court possessed

sufficient information to fix the amount of restitution at $524.19

before the deadline set forth in section 18-1.3-603(1)(b). Nor is

there disagreement that the court could have left “restitution open”

13 for less than ninety-one days so that it could have met section

18-1.3-603(1)(b)’s deadline without a finding of “good cause.”

¶ 27 After the completion of that briefing schedule on June 19,

2018, more than four months passed until Weeks alerted the court

in late October 2018 that it had still not determined restitution.

And more than seven months passed from June 19, 2018, until the

trial court ordered restitution in January 2019. The trial court’s

ruling did not explain, and the record does not show, what good

cause, if any, existed for that inordinate delay. See People v. Gillett,

, 618 n.9 (Colo. 1981) (“Good cause generally means a

substantial reason amounting in law to a legal excuse for failing to

perform an act required by law.”). We will not infer the existence of

good cause in the absence of such an explanation. See Harriman v.

Cabela’s Inc.,

, ¶ 77,

(holding that

appellate courts may not engage in factfinding).

¶ 28 Thus, we must reverse under the circumstances and the plain

language of section 18-1.3-603(1)(b).

¶ 29 In so ruling, we recognize that the prosecution’s initial motion

for an “interim amount” of restitution left open the possibility that it

might later request additional restitution. However, the trial court’s

14 decision regarding good cause under section 18-1.3-603(1)(b) was

silent on whether the prosecution needed more time to investigate

additional bases for restitution. And the prosecution never

requested any additional restitution. Under the circumstances, the

district court could have ordered the interim amount of restitution

within the ninety-one-day period under section 18-1.3-603(1)(b),

while specifically reserving its right to order additional restitution

beyond the ninety-one-day period if the prosecution made a

sufficient showing of “good cause” under section 18-1.3-603(1)(b) or

“extenuating circumstances” under section 18-1.3-603(2). See

Meza, ¶¶ 9-16, 415 P.3d at 306-09 (a district court may order a

specific amount of restitution while specifically reserving its right to

determine at a later time the final amount of restitution). The court

did not do so.

IV. Conclusion

¶ 30 The restitution order is vacated.

JUDGE FOX concurs.

JUDGE BERGER dissents.

15 JUDGE BERGER, dissenting.

¶ 31 I agree with my colleagues that courts are not roving

commissions to fix defective statutes. Indeed, I recently authored

two decisions for divisions of this court that refused to rewrite

statutes to correct perceived legislative errors. People v. Ramirez,

; Ray v. People,

.

¶ 32 In the first, the division rejected the dissent’s attempt to

rewrite a criminal statute, criminalizing conduct that almost

everyone would agree should be criminalized but was not. Ramirez,

¶¶ 30–32 (“While the result mandated by the statutory language

likely is undesirable to almost everyone, that does not give us a

license to improve or rewrite the statute.”). A variety of constraints

counseled against a judicial rewrite and required us to vacate the

conviction.

¶ 33 In the second case, the plain language of a statute required

reports of court orders of mental health commitments to be

reported to government agencies to prevent those persons from

purchasing firearms. Ray, ¶ 3. But the statute only authorized

reports of mental health commitments that were made by court

orders. Id. at ¶ 20. The plain language of the statute simply did

16 not encompass reports other than by court order, so the statute

had to be applied as written — even though, in all likelihood, the

legislature intended otherwise. Id. at ¶ 23.

¶ 34 This case is different. The differences convince me that the

majority is wrong. I therefore respectfully dissent.

I. The Restitution Statute Should be Liberally and Reasonably Construed to Accomplish its Legislative Objective

¶ 35 We are tasked with liberally construing the restitution statute

to accomplish the legislative objective of compensating crime

victims for the losses they suffered. People v. McCann,

(Colo. App. 2005). Thus, divisions of this

court have concluded that the ninety-one-day period is not a

jurisdictional bar to entry of a restitution order. People v. Harman,

(Colo. App. 2004). District courts have not only

“the authority, but the obligation, to order restitution.” People v.

Knoeppchen,

.

¶ 36 There is a reasonable way to read the statute to accomplish

the legislative objective: when a court extends the time for the

prosecutor to seek restitution, that extension implicitly constitutes

good cause for the trial court to decide the motion outside of the

17 prescribed ninety-one-day period. The majority asserts that the

trial court did not adequately explain why it delayed entering the

order.

¶ 37 People v. Knoeppchen demonstrates why a more detailed

explanation of good cause is unnecessary. There, the defendant

argued that the district court failed to make a finding of good cause

before permitting the prosecution’s late request for restitution. Id.

at ¶ 22. A division of this court reasoned that “nothing in the

statute explicitly requires the court to make an oral or written

finding of good cause; rather, the statute merely requires good

cause to be shown.” Id. at ¶ 25. The division also concluded that

the good cause showing need not be made at any particular time. 1

Id. at ¶ 26.

¶ 38 As Chief Judge James B. Boyd cogently observed in his order

granting restitution in this case, it is senseless to construe this

statute to bar restitution when the court delays in entering the

1 So, under Knoeppchen, a court may find good cause even after the entry of an untimely restitution order. People v. Knoeppchen,

. This analysis opens another, less-drastic disposition for this case — if the majority is concerned with the trial court’s good cause finding, then it should remand to the trial court for a better explanation.

18 order in a case like this. If, as here, a trial court grants the

prosecutor an additional ninety-one days after the date of

sentencing to request restitution, isn’t that, at a minimum, good

cause for the court to decide the matter after the ninety-one-day-

period expires? “[W]here the prosecution timely provides

information to the court on or just before the ninety-first day, it will

usually be impossible for the district court to rule on the restitution

request within the same period.” Knoeppchen, ¶ 22 n.4. Obviously,

the court needs time to decide the motion after it is filed and any

briefing is completed. This is sufficient good cause for delaying an

entry of restitution under the statute.

II. The Majority’s Construction Leads to an Absurd Result

¶ 39 “We presume that the General Assembly intends a just and

reasonable result when it enacts a statute, and we will not follow a

statutory construction that defeats the legislative intent or leads to

an unreasonable or absurd result.” People v. Vinson,

(Colo. App. 2002).

¶ 40 “Although we must give effect to the statute’s plain and

ordinary meaning, the General Assembly’s intent and purpose must

prevail over a literalist interpretation that leads to an absurd

19 result.” People v. Kailey,

(quoting Lagae v.

Lackner,

(Colo. 2000)). Thus, we may reject

interpretations of statutes when “the resultant absurdity is ‘so gross

as to shock the general moral or common sense.’” Dep’t of Transp. v.

City of Idaho Springs,

(Colo. App. 2008) (quoting

Crooks v. Harrelson,

(1930)).2

¶ 41 Here, the majority’s decision leads to an absurd result that the

legislature did not intend.

¶ 42 The majority’s unwarranted prohibition on an implied finding

of good cause to extend the ninety-one-day period is plainly

inconsistent with the legislative intent of awarding restitution to

crime victims. Nothing in the statute prohibits an implied

extension of the time for ruling on the motion. The legislature

intended trial judges to decide restitution in a timely fashion; the

legislature could not have intended that no restitution would enter

if no decision issued in ninety-one days. Simply put, the majority’s

disposition prevents a crime victim from receiving restitution that is

2 And further, the General Assembly has, by statute, told us that “[i]n enacting a statute, it is presumed that . . . [a] just and reasonable result is intended.” § 2-4-201(1)(c), C.R.S. 2019; see also § 2-4-203, C.R.S. 2019.

20 not only timely requested by the prosecutor, but also conceded by

the defendant.3

III. The Majority’s Construction is Irreconcilable With This Court’s Precedent

¶ 43 The majority’s judgment is also irreconcilable with the line of

cases from this court that hold that a sentence is illegal when it

does not address restitution. See, e.g., Knoeppchen, ¶ 18. These

cases recognize that “in all cases in which a defendant’s criminal

conduct has caused pecuniary damages to a victim, the trial court

is required to order the defendant to pay restitution and to fix the

amount of such restitution as part of the judgment.” McCann,

.

¶ 44 These cases remanded to the trial court to address restitution

and correct the illegal sentence, often years after sentence is

imposed. People v. Dunlap,

(Colo. App. 2009)

(“[W]e must remand this case to the trial court for the consideration

and fixing of restitution under the statute that was applicable at the

3 A reasonable argument can be made that the defendant waived any objection to the entry of the restitution order, but I need not reach the doctrine of waiver given the availability of a patently reasonable construction of the statute that validates the restitution order.

21 time defendant was originally sentenced.”); People v. Smith,

(Colo. App. 2005) (“Because defendant’s

sentence was illegal, the trial court did not violate defendant’s right

to be free from double jeopardy when it ordered restitution on

remand.”).

¶ 45 If the majority’s analysis were correct, the only possible

disposition in those cases would have been to direct the trial court

on remand to enter a restitution award of zero. And even this result

is legally suspect because trial courts can only enter “no order for

the payment of restitution” when the court makes “a specific finding

that no victim of the crime suffered a pecuniary loss.”

§ 18-1.3-603(1)(d), C.R.S. 2019; McCann,

. Here,

it is undisputed that the victim suffered pecuniary loss that was

caused by Weeks.

¶ 46 To combat this contradiction with our prior precedent, the

majority asserts that “[t]he ninety-one-day deadline does not apply

to determinations of restitution following an appeal and remand.”

Supra ¶ 19. In support of this assertion, the majority cites People v.

Rockne,

, but that case merely held that the statutory

deadline did not limit the prosecution’s ability to seek additional

22 restitution after a prior timely award was already entered. Id. at

¶ 18. Rockne does not address the situation like those in Dunlap

and Smith, where an illegal sentence must be corrected because it

never included a restitution order. But more importantly, because

the assertion that the ninety-one-day deadline does not apply to

determining restitution on remand has no statutory basis, it

seemingly runs afoul of the majority’s own prohibition against

adding words to statutes. Supra ¶ 22.

¶ 47 The result of the majority opinion is this: When a trial court

entirely ignores restitution, and the issue is appealed, the error

must be corrected on remand without regard to the expiration of the

ninety-one-day period. But when a restitution award is granted on

a timely filed request, the award must be vacated when the court

does not expressly find good cause to make its ruling after the

ninety-one-day period, or when the finding of good cause is cursory.

That makes no sense.

IV. The Majority’s Decision Will Have Harmful Real-World Consequences

¶ 48 Finally, the majority opinion leaves prosecutors in uncharted

waters. By the plain terms of the statute, prosecutors fulfill their

23 responsibility to seek restitution by filing a motion either before

sentencing or, if information is not readily available, within

ninety-one days of sentencing. § 18-1.3-603(2). But no longer.

Now, under the majority’s approach, prosecutors must hound trial

courts to rule on the motion (or to state explicitly why they are not

doing so) before the ninety-one-day period expires. Does the

majority opinion mean that, after the ninety-one days, prosecutors

must timely appeal the implicit denial of their restitution order?

Seemingly, yes.

¶ 49 The reality is that many district court judges face crushing

caseloads that inevitably delay the entry of orders. This is good

enough a reason why we should not be encouraging prosecutors to

pepper courts with more motions in the lead up to the ninety-one-

day deadline. This is also good enough reason why neither the

General Assembly nor the supreme court in its rulemaking capacity

has placed fixed time limits for the adjudication of various motions

or other matters by trial courts; the majority’s inflexible

construction of this statute does exactly that.

¶ 50 In the end, if the majority’s opinion stands, either because the

General Assembly does not promptly fix the statute, or the supreme

24 court does not intervene, grave harm will be done to crime victims

— harm that the restitution statute was explicitly intended to

remedy. And although the restitution award in this case is

relatively modest, that will not always be the case.

¶ 51 For all these reasons, I would affirm the trial court’s order

awarding restitution. I respectfully dissent.

25