Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Court of Appeals unanimously vacated an order in a case involving a restitution order.
According to the appeals court opinion, Jessica Roberson pleaded guilty to felony counts of forgery and theft in one case, a misdemeanor count of criminal mischief in a second case and a probation violation in a third case. Roberson was sentenced by the district court June 25, 2020.
At the sentencing hearing, the court ordered restitution but reserved determination of the amount, giving the prosecution 29 days to file a request and the defense 21 days from the date of that filing to file an objection.
The prosecution filed its initial request for restitution July 23, seeking $62,241.28. The following day, the court ordered any objection to the restitution request was due by Aug. 7. The appeals court opinion explained that, because Roberson didn’t file an objection by that date, the court entered an order for the requested amount of restitution Aug. 10.
On Aug. 11, the defense counsel filed an objection and moved the court to reconsider the restitution order because she had confused the deadlines, the opinion noted. On the same day, the court granted Roberson’s motion “based on the reasons stated in the motion” and directed the parties to set the matter for a status conference.
On Aug. 13, the court held a status conference where the defense counsel requested the prosecution provide more information to substantiate the claimed amount of restitution. Concluding the prosecution would need some “time to get that information to Ms. Roberson” before the restitution hearing, the court set the next status conference for Oct. 2. The defense counsel acquiesced to that date.
The prosecution filed an amended request for restitution Sept. 16. At the status conference Oct. 2, the defense counsel requested the court set another status conference because she was still trying to understand how the prosecution determined the restitution amount. The court set another status conference for Dec. 21.
After more amended requests for restitution and several more continuances, the court conducted a final restitution hearing Sept. 14, 2021, 446 days after sentencing. At the hearing, the defense counsel argued the court was without authority to enter restitution under the 2020 Colorado Court of Appeals case People v. Weeks (Weeks I) because the 91-day deadline had passed.
The court denied the objection stating “[T]he [c]ourt can find, and does find, good cause to not have entered the order for restitution based upon the objection and the necessity of setting it for a hearing.”
The court found the prosecution had provided sufficient evidence to establish restitution in the full amount of its last amended request, $60,633.94. Roberson appealed the district court’s restitution order.
On appeal, she claimed the court erred by entering a restitution order more than 91 days after sentencing in violation of Colorado Revised Statute 18-1.3-603(1)(b) as construed by the 2021 Colorado Supreme Court case People v. Weeks (Weeks II) affirming Weeks I, among other things.
The appeals court explained in resolving Roberson’s first contention, the appeals court distinguished the case from two recent Colorado Court of Appeals decisions: the 2023 case People v. Johnson, where the appeals court held a trial court made an express finding of good cause to extend the statutory deadline by entering orders allowing the defendant to object to restitution beyond the deadline; and the 2023 case People v. Babcock where the appeals court held a defendant waived his right to challenge the timeliness of a restitution order by requesting a restitution hearing be set outside the statutory deadline.
The appeals court concluded the district court lacked the authority to determine the amount of restitution to be paid by Roberson more than 91 days after sentencing, and Roberson didn’t waive or invite the error. The appeals court vacated the restitution order and didn’t reach her other challenges.
Anderson v. Shorter Arms Investors, LLC et al.
The Colorado Court of Appeals affirmed a judgment in a case involving the warranty of habitability statute.
The appeals court opinion noted the parties’ summary judgment brief revealed the following facts.
Allen Anderson is a tenant at an apartment complex owned by Shorter Arms Investors, LLC and managed by PK Management, LLC (collectively Shorter Arms). Over the years Anderson made written and oral demands that Shorter Arms repair numerous living conditions in his apartment he considered deplorable.
At various times during Anderson’s tenancy, the Colorado Department of Public Health and Environment inspected Anderson’s apartment and provided Shorter Arms with written notice of the results. In May 2019, CDPHE reported to Shorter Arms there was a “possible mold issue.”
According to the appeals court opinion, “when Shorter Arms failed to make the needed repairs, Anderson sued Shorter Arms for breach of the warranty of habitability.” The district court granted summary judgment in favor of Shorter Arms, finding Anderson failed to provide sufficient notice required by statute. Anderson appealed the judgment.
The appeal required the Colorado Court of Appeals to address whether the notice requirements in the warranty of habitability statute, CRS 38-12-503, require strict compliance or merely substantial compliance. The appeals court concluded the statute requires strict compliance and contended Anderson’s notice to Shorter Arms didn’t strictly comply with the statute and the appeals court affirmed the judgment.
Colorado Court of Appeals Judge Timothy Schutz dissented.
“I agree with my colleagues in the majority that a landlord must receive written notice of an uninhabitable condition to trigger the repair obligation under section 38-12-503, C.R.S. 2022,” Schutz wrote. “But I respectfully disagree with the majority’s conclusion that the undisputed facts of this case establish that the landlord did not receive adequate notice. I also disagree with my colleagues’ conclusion that a notice of uninhabitable conditions must include a contemporaneous grant of permission for the landlord to enter the tenant’s unit to make the requested repairs when the tenant has previously provided such a written consent.”