Accepting a Post–91-Day Restitution Hearing Date Waives the Statutory Deadline: Commentary on People v. Roberson, 2025 CO 30

Introduction

In People v. Roberson, 2025 CO 30, 569 P.3d 811, the Colorado Supreme Court clarified that a defendant can voluntarily waive the statutory right to have restitution determined within ninety-one days of sentencing by accepting a hearing date outside that deadline and by later seeking continuances. Writing for the Court, Justice Hart concluded that this statutory deadline is not jurisdictional (as explained in the companion decision Babcock v. People, 2025 CO 26, 569 P.3d 850) and that a defendant’s conduct—through counsel—may constitute an implied waiver of the deadline. The Court reversed the court of appeals, which had vacated the restitution order on the ground that no timely, express “good cause” finding extended the deadline under section 18-1.3-603(1)(b), C.R.S. (2024).

A concurrence by Justice Gabriel (joined by Chief Justice Márquez) disagreed with the majority’s framing of waiver but concurred in the judgment on alternative grounds: (1) any error was invited because the district court initially entered a timely restitution order that the defendant later challenged, and/or (2) the defendant’s assent to a post-deadline hearing itself established good cause under the statute.

This decision significantly affects criminal restitution practice in Colorado by clarifying the waivability of the ninety-one-day deadline and by signaling that scheduling choices by defense counsel can carry dispositive waiver consequences.

Case Overview

Parties: The People of the State of Colorado (Petitioner) v. Jessica Jo Roberson (Respondent). The case was argued en banc. Justice Hart authored the majority opinion, joined by Justices Boatright, Hood, Samour, and Berkenkotter. Justice Gabriel, joined by Chief Justice Márquez, concurred in the judgment.

Background: Roberson, a former employee of a car dealership, pleaded guilty to forgery and theft, and agreed to pay $21,450 in restitution with “additional restitution” reserved. At sentencing, the court set a schedule for restitution filings and objections. The People timely sought $62,241.28 in restitution twenty-eight days after sentencing. After some procedural turns—including a timely (but later reconsidered) restitution order—the district court set a status conference for October 2, outside the ninety-one-day window. Defense counsel agreed to that date and subsequently requested further continuances. Ultimately, 446 days after sentencing, Roberson argued the court lacked authority to order restitution because the ninety-one-day deadline had passed without a timely, express good-cause finding.

Procedural posture: The court of appeals vacated the restitution order under People v. Weeks, 2021 CO 75, 498 P.3d 142, which requires an express and timely finding of good cause to extend the ninety-one-day deadline. The Colorado Supreme Court granted certiorari and reversed.

Summary of the Opinion

The ninety-one-day deadline in section 18-1.3-603(1)(b) is not jurisdictional and can be waived. The Court relied on its companion decision in Babcock v. People, 2025 CO 26.
Waiver of statutory rights must be voluntary but need not be knowing and intelligent; counsel may waive a defendant’s statutory rights. Waiver can be implied by conduct that manifests an intent to relinquish the right or that is inconsistent with preserving it.
On these facts, Roberson voluntarily waived the statutory claim by accepting a hearing date beyond the ninety-one-day deadline and by seeking additional continuances without asserting the deadline until 446 days after sentencing.
Result: The court of appeals’ decision vacating the restitution order was reversed and the case remanded for consideration of issues not previously reached.

Factual and Procedural Background

Roberson pleaded guilty to felony forgery and theft (and misdemeanor criminal mischief and a probation violation). The plea agreement stipulated $21,450 in restitution, with “additional restitution” reserved. At sentencing (June 25, 2020), the court ordered restitution to be determined, set a deadline for the People to file notice (July 24), and gave Roberson time to object; after colloquy, the court said she would have twenty-one days and could seek further extensions “within the ninety-one days.”

The People filed a restitution request on July 23 for $62,241.28. The court, consistent with its original order (but not the colloquy), allowed fourteen days to object. When no objection had been filed, the court entered a restitution order on August 10 (still within ninety-one days).

On August 11, defense counsel objected, explaining reliance on the twenty-one-day objection period discussed at sentencing. The court reconsidered and set a status conference. At an August 13 conference, defense counsel—new to the case—requested more time to review the plea negotiations and supporting documentation. The court proposed October 2 for a status conference—outside the ninety-one-day window—and defense counsel agreed to that date. Multiple continuances followed, most at defense request. Hearings occurred in August and September 2021. On the final day of hearing (446 days after sentencing), Roberson asserted that the district court lacked authority to order restitution after the deadline had lapsed.

The district court rejected that argument and entered restitution of $59,870.93. The court of appeals vacated the order based on Weeks. The Supreme Court reversed, holding that Roberson waived her claim by accepting a hearing beyond the statutory deadline and seeking continuances.

Issues Presented

Whether a defendant invites error or waives a claim that a restitution order must be vacated due to statutory deadline violations when the defendant agrees to pay restitution, objects to a timely restitution request and order, and requests/agrees to a hearing beyond the ninety-one-day deadline.
If not waived or invited, whether an appellate court may affirm a restitution order when any violation of the restitution statute’s procedural requirements is harmless. (The Court did not reach harmless error because it found waiver.)

Detailed Analysis

Statutory Framework: Section 18-1.3-603(1)(b)

Colorado’s restitution statute provides that the court shall determine and order restitution within ninety-one days of sentencing, absent an express and timely finding of good cause to extend the deadline. In People v. Weeks, the Court held that the deadline requires an express, timely “good cause” finding to extend; implied or post-deadline findings are insufficient, and the trial court must act within the statutory window unless properly extended.

Precedents Cited and Their Role

People v. Weeks, 2021 CO 75, 498 P.3d 142
Weeks established that trial courts must determine and order restitution within ninety-one days, unless an express and timely good-cause finding extends the deadline. In Roberson, the Court distinguished Weeks on critical grounds: Weeks did not involve a waiver argument and the defendant there asserted the statutory right before the deadline expired. By contrast, Roberson consented to proceedings beyond the deadline and repeatedly sought continuances without raising the deadline until long after it had passed.
Babcock v. People, 2025 CO 26, 569 P.3d 850
Decided the same day as Roberson, Babcock clarified that the ninety-one-day period is not jurisdictional and can be waived. Roberson relies on Babcock for the threshold proposition that the deadline is a claim-processing rule, not a limit on subject-matter jurisdiction.
Finney v. People, 2014 CO 38, 325 P.3d 1044
The Court reiterated that waiver of statutory rights must be voluntary but need not be knowing and intelligent, and that counsel may waive a defendant’s statutory rights. Roberson applies this standard to assess whether the defendant’s conduct constituted waiver.
Forgette v. People, 2023 CO 4, 524 P.3d 1
Forgette articulates that waiver can be implied when a party’s conduct manifests an intent to relinquish a right or is inconsistent with asserting it. Roberson draws on this principle to conclude that accepting a post-deadline hearing and seeking continuances amounts to implied waiver.
Richardson v. People, 2020 CO 46, 481 P.3d 1
Establishes de novo review of whether a claim is waived; applied in Roberson.
People v. Rediger, 2018 CO 32, 416 P.3d 893; Dep’t of Health v. Donahue, 690 P.2d 243 (Colo. 1984)
Rediger distinguishes waiver (“intentional relinquishment of a known right”) and emphasizes that waiver extinguishes error and therefore appellate review. The majority in Roberson applies a more flexible standard for statutory rights per Finney; the concurrence would adhere to Rediger’s formulation but arrives at the same result via invited error and/or good cause.

Legal Reasoning

The Court’s reasoning proceeds in two steps. First, relying on Babcock, the Court confirms the ninety-one-day deadline is not jurisdictional and is therefore subject to waiver. Second, the Court evaluates whether Roberson’s conduct effected a waiver.

On waiver, the Court applies Finney and Forgette: waiver of a statutory right need only be voluntary and may be inferred from conduct. Counsel’s actions are attributable to the defendant. Here, the sentencing court referenced the ninety-one-day period. When, in response to the defense’s own need for more documentation, the court proposed a status conference for October 2—ninety-nine days after sentencing—defense counsel agreed. Counsel then sought multiple continuances over many months. At no point before 446 days after sentencing did Roberson assert a violation of the deadline. This conduct, the Court held, manifested an intent to relinquish the statutory right or was inconsistent with asserting it, thus constituting a voluntary waiver.

The Court distinguishes Weeks: the defendant there invoked his statutory right before the deadline and no waiver argument was developed. Weeks continues to require an express, timely good-cause finding to extend the deadline in cases where the defendant has not waived the right. Roberson adds an important caveat: a defendant can forfeit the Weeks objection through waiver by conduct.

Because waiver extinguishes error and precludes appellate review of the waived claim, the Court reversed the court of appeals and remanded for consideration of issues the division had not reached.

The Concurring Opinion (Gabriel, J., joined by Márquez, C.J.)

The concurrence disagrees with the majority’s articulation of waiver for statutory rights, adhering to Rediger’s definition of waiver as the intentional relinquishment of a known right. In the concurrence’s view, the record did not establish an intentional relinquishment of a known right simply from agreeing to a post-deadline hearing date.

Nonetheless, the concurrence reaches the same judgment for two alternative reasons:

Invited error: The district court initially entered a timely restitution order within ninety-one days (on August 10). Roberson then asked the court to reconsider and sought a hearing and continuances beyond the ninety-one-day mark. Any error in revisiting the restitution order after the deadline was thus invited.
Good cause: Even if not invited, Roberson’s assent to a post-deadline hearing date and requests for continuances established good cause to extend the deadline under section 18-1.3-603(1)(b).

The concurrence thus underscores alternative doctrinal pathways—invited error and good-cause extension—by which late restitution proceedings may be upheld even without a finding of implied waiver as the majority conceives it.

Impact and Implications

Key Practical Consequences

Preservation requirements for defendants: Defense counsel must timely assert the ninety-one-day deadline if they intend to rely on it. Accepting a hearing date outside the deadline or seeking continuances without reserving the objection may be treated as a waiver, extinguishing the claim.
Counsel as agent for waiver: The Court reiterates that counsel can waive statutory rights on a defendant’s behalf, and a knowing-and-intelligent personal waiver is not required for statutory rights. Routine scheduling decisions can carry dispositive waiver consequences.
Trial court practice: Judges should build a clear record. When setting a hearing beyond the ninety-one-day period, courts should (a) ask whether the defendant waives the statutory deadline, and/or (b) make an express, timely finding of good cause. Although Roberson recognizes waiver by conduct, an express record of waiver or good cause will reduce litigation.
Prosecutor practice: Prosecutors should solicit explicit on-the-record waivers or request contemporaneous good-cause findings if deadlines are extended, and document defense consent to scheduling beyond day ninety-one.
Victims’ interests: The decision advances the stability of restitution orders where defense conduct contributes to delay. It reduces the risk that restitution determinations will be vacated solely due to timing, when the defendant has accepted post-deadline proceedings.
Appellate review: Waiver extinguishes error and forecloses appellate review of the deadline claim. The opinion thus shifts appellate focus to substantive restitution issues when waiver is found.

How Roberson Interacts with Weeks and Babcock

Weeks remains a strong directive: absent waiver or invited error, trial courts must set restitution within ninety-one days or make an express, timely good-cause finding to extend the deadline; implicit or after-the-fact findings do not suffice.
Babcock reframes the deadline as a claim-processing rule capable of waiver. Roberson operationalizes that reframing by identifying conduct sufficient to waive the deadline.

Unresolved or Narrow Points

Harmless error: The Court did not reach the issue of whether procedural violations of the restitution statute can be harmless; this remains open for a case in which waiver or invited error is not dispositive.
Scope of “voluntary” waiver: The majority emphasizes voluntariness but does not prescribe a formal colloquy. Future cases may refine what kinds of scheduling conduct are sufficient to show voluntary waiver when records are ambiguous.
Good cause findings: The concurrence would treat defense assent as itself establishing good cause. The majority did not adopt this as a categorical rule, so trial courts should continue to make express, timely findings where possible.

Complex Concepts Simplified

Jurisdictional vs. claim-processing rules:
A jurisdictional rule limits the court’s power; it cannot be waived, and actions taken in violation are void. A claim-processing rule governs how and when claims are handled; it can be forfeited or waived. The ninety-one-day restitution deadline is claim-processing, not jurisdictional (Babcock).
Waiver vs. forfeiture vs. invited error:
Waiver is the intentional (or, for statutory rights, voluntary) relinquishment of a right; it extinguishes error and bars appellate review. Forfeiture is the failure to timely assert a right; it can still be reviewed for plain error. Invited error applies when a party induces the error; the party cannot later complain about it on appeal.
Good cause to extend:
Under Weeks, extending the ninety-one-day deadline requires an express and timely finding of “good cause.” The concurrence suggests that defense assent to a later date can itself constitute good cause; the majority did not rely on this theory, instead finding waiver by conduct.
Counsel’s authority to waive statutory rights:
For statutory (non-constitutional) rights, counsel may effect waiver on the client’s behalf, and a knowing-and-intelligent personal waiver is not required. Nonetheless, prudent practice is to consult the client and make the waiver explicit on the record.

Practice Pointers

Defense counsel:
- Preserve the ninety-one-day issue early and often. Object on the record to any post-deadline hearing unless the client intends to waive the right.
- If a later date is necessary, consider stating both: (a) non-waiver of the statutory deadline, and (b) a request that the court make an express, timely good-cause finding.
- When asking to reconsider a timely restitution order, be aware that invited error or waiver doctrines may foreclose later deadline challenges.
Prosecutors:
- When defense requests or accepts a post-deadline date, request the court to memorialize defense assent as a waiver and/or to enter an express, timely good-cause finding.
- If the court initially enters a timely order, argue invited error if the defense later induces reconsideration beyond ninety-one days.
Trial courts:
- At the time of any extension beyond ninety-one days, make an express “good cause” finding on the record and confirm whether the defense waives the deadline. Do both if possible.
- Create clear minute orders reflecting the deadlines, any objections, and any waivers or good-cause findings.

Conclusion

People v. Roberson establishes that the ninety-one-day deadline for determining restitution is a waivable claim-processing rule and that a defendant’s acceptance of a hearing date beyond that deadline—especially when accompanied by defense-initiated continuances—can constitute a voluntary waiver of the statutory right to a timely restitution order. The decision harmonizes with Weeks by preserving its requirement of an express and timely good-cause finding where the defendant has not waived the right, while clarifying that defendants cannot acquiesce in post-deadline scheduling and later use the deadline as a sword.

The concurrence highlights alternative paths—invited error and good cause—to sustain post-deadline proceedings when the defendant has sought or consented to delay. In practical terms, Roberson urges criminal practitioners and courts to be meticulous in preserving or documenting waiver of the ninety-one-day deadline and, when extending, to make express good-cause findings. For victims, the decision promotes finality and stability of restitution orders notwithstanding defense-driven delays. For the defense bar, it underscores the importance of timely assertion and clear reservation of statutory rights throughout restitution proceedings.