Colorado Supreme Court: Acceptance of a Post-Deadline Restitution Hearing Waives the 91-Day Statutory Right

Introduction

In People v. Roberson, 2025 CO 30, the Colorado Supreme Court clarified the enforceability and waivability of the state’s restitution deadline contained in section 18-1.3-603(1)(b), C.R.S. (2024). Specifically, the Court held that when a defendant accepts a restitution hearing date set beyond the statutory ninety-one-day period and then seeks additional continuances, that conduct constitutes a voluntary waiver of the statutory right to have restitution determined within that period, absent an express and timely finding of good cause. The decision distinguishes the Court’s prior landmark ruling in People v. Weeks, 2021 CO 75, and aligns with a set of companion opinions issued the same day, including Babcock v. People, confirming that the ninety-one-day timeline is non-jurisdictional and can be waived.

The case arose from a plea agreement in which respondent Jessica Jo Roberson stipulated to $21,450 in restitution, with “additional restitution” reserved. When the prosecution later sought a substantially higher figure, the district court offered a hearing date outside the ninety-one-day window. Defense counsel accepted that date and later requested multiple continuances. Over a year after sentencing, Roberson challenged the court’s authority to impose restitution based on the statutory deadline. The Colorado Court of Appeals vacated the restitution order under Weeks. The Supreme Court reversed, holding that Roberson’s conduct waived her statutory claim.

Summary of the Opinion

Writing for the Court, Justice Hart concluded that:

• The ninety-one-day period in section 18-1.3-603(1)(b) is not jurisdictional and may be waived. The Court relied on its companion decision, Babcock v. People, 2025 CO ___, to reaffirm this principle.
• Waiver of a statutory right need only be voluntary; it need not be knowing and intelligent in the constitutional sense (citing Finney v. People, 2014 CO 38).
• Waiver can be implied through conduct inconsistent with the later assertion of the right (citing Forgette v. People, 2023 CO 4), and counsel can waive a defendant’s statutory rights.
• Roberson’s acceptance of a hearing date beyond the ninety-one-day deadline, and her subsequent requests for multiple continuances, manifested an intent to relinquish her statutory right to have restitution determined within ninety-one days absent a contemporaneous good-cause finding.
• Weeks does not control because (1) the People did not argue waiver in Weeks, and (2) the defendant in Weeks asserted the ninety-one-day right before the deadline lapsed, whereas Roberson did not raise the issue until 446 days after sentencing.

The Court reversed the court of appeals and remanded for consideration of issues that division had not reached.

Justice Gabriel, joined by Chief Justice Márquez, concurred in the judgment. While disagreeing with the majority’s waiver analysis, the concurrence would affirm on alternative grounds: Roberson either invited any error by seeking reconsideration and agreeing to a post-deadline hearing, or her assent supplied “good cause” under section 18-1.3-603(1)(b) to extend the deadline.

Background and Procedural Posture

Roberson, a former employee of a car dealership, pleaded guilty to felony forgery and theft, misdemeanor criminal mischief, and a probation violation. The plea stipulated to $21,450 in restitution, with additional restitution reserved. At sentencing on June 25, 2020, the court stated it would reserve the final amount, gave the prosecution until July 24 to file a notice, and granted Roberson twenty-one days to object, noting it would “see where we are within the [ninety-one] days.”

The prosecution filed a restitution request of $62,241.28 on July 23 (day 28). On August 10, because no objection had been filed by the 14-day deadline contained in a written order, the court entered an order awarding the requested amount. The next day, defense counsel objected, explaining she had relied on the twenty-one-day timeline stated at sentencing; the court granted reconsideration and set the matter for a status conference.

At an August 13 status conference, new defense counsel requested more time to evaluate the amounts. The court proposed an October 2 hearing date—outside the ninety-one-day statutory window—and defense counsel agreed. After several continuances, the restitution hearing occurred in August and September 2021. At the conclusion—446 days after sentencing—Roberson asserted that the court lacked authority to impose restitution because the ninety-one-day deadline had passed. The district court rejected that argument, found good cause to have deferred, and entered a restitution order of $59,870.93.

On appeal, after Weeks was decided, Roberson argued that the district court lacked authority to impose restitution because it had not made an express and timely good-cause finding before the ninety-one days elapsed. The court of appeals agreed and vacated the order. The Supreme Court granted certiorari, reversed, and remanded.

Analysis

Precedents Cited and Their Influence

• Babcock v. People, 2025 CO ___ / 2025 CO 26 (companion case): The Court relies on Babcock to hold that the ninety-one-day period for determining restitution is a non-jurisdictional, claim-processing rule that can be waived. This frames the entire inquiry: if the deadline is not jurisdictional, then the failure to comply does not strip the court of power; it triggers a statutory right that may be lost through waiver or other doctrines.
• People v. Weeks, 2021 CO 75, 498 P.3d 142: Weeks held that absent an express and timely good-cause finding, a trial court must determine and order restitution within ninety-one days of sentencing. The Supreme Court distinguishes Weeks on two grounds: (1) the People did not argue waiver there, and (2) the defendant timely asserted his rights before the deadline. Roberson thus refines the post-Weeks landscape by recognizing waiver as a dispositive response to a Weeks-based challenge when the defendant’s conduct is inconsistent with asserting the deadline.
• Finney v. People, 2014 CO 38, 325 P.3d 1044: Establishes that waiver of a statutory right need only be voluntary, not knowing and intelligent (as with constitutional rights). It also confirms that counsel can waive statutory rights on a defendant’s behalf. These points are pivotal: Roberson’s counsel accepted the post-deadline hearing and sought continuances, which sufficed to waive.
• Forgette v. People, 2023 CO 4, 524 P.3d 1: Clarifies that waiver can be implied from a party’s conduct that manifests intent to relinquish the right or is inconsistent with asserting it. The Court uses this standard to find that the sequence of acceptance and continuances manifested waiver.
• Richardson v. People, 2020 CO 46, 481 P.3d 1: Provides the standard of review: whether a claim is waived is reviewed de novo. This frames the Court’s task in assessing the record for waiver.
• People v. Rediger, 2018 CO 32, 416 P.3d 893; Dep’t of Health v. Donahue, 690 P.2d 243 (Colo. 1984): Rediger articulates the constitutional waiver standard—“intentional relinquishment of a known right or privilege”—and addresses invited error. The majority notes the distinction: statutory rights like this one require only voluntary waiver (Finney), not the constitutional standard in Rediger/Donahue. The concurrence, however, would continue to apply Rediger’s formulation of waiver and instead resolves the case under invited error or good cause.

Legal Reasoning

The Court’s reasoning proceeds in two steps. First, relying on Babcock, it classifies the ninety-one-day period as non-jurisdictional and therefore subject to waiver. Second, it finds waiver on this record.

On waiver, the Court emphasizes several facts:

• The district court explicitly referenced the ninety-one-day window at sentencing (“we’ll see where we are within the ninety-one days”).
• Defense counsel accepted an October 2 hearing date—ninety-nine days after sentencing—after asking for more documentation to test the prosecution’s numbers.
• Defense counsel then requested four additional continuances between October and the following June.
• Roberson did not assert the ninety-one-day argument until 446 days after sentencing.

These actions, taken together, are conduct “manifest[ing] an intent to relinquish” the statutory timing right or “inconsistent with its assertion” (Forgette). Because counsel may waive statutory rights on the defendant’s behalf (Finney), and because only a voluntary waiver is required for statutory rights, the Court holds that Roberson waived her claim. Waiver “extinguishes error and therefore appellate review” (Rediger).

The Court distinguishes Weeks by noting that the defendant in Weeks preserved his timing claim before the deadline elapsed and the People did not advance waiver there. Roberson, by contrast, consented to a post-deadline schedule and pressed the timing argument only after a lengthy series of continuances.

The Court therefore reverses the court of appeals and remands for consideration of unresolved issues.

The Concurrence in the Judgment

Justice Gabriel (joined by Chief Justice Márquez) concurs in the judgment but not the majority’s waiver analysis. In his view:

• Waiver should remain the “intentional relinquishment of a known right,” consistent with Rediger and Donahue.
• Even so, the outcome is the same because (a) any error was invited—Roberson sought reconsideration and agreed to a post-deadline hearing, then continued to seek extensions—or (b) her assent established “good cause” under section 18-1.3-603(1)(b) for extending the deadline.
• On either alternative theory, the district court did not err in proceeding to a hearing after the ninety-one-day period.

Impact and Practical Significance

Roberson reshapes the post-Weeks restitution landscape in several pivotal ways:

• Waiver as a decisive answer to Weeks-based challenges: Weeks remains a powerful rule that demands an express and timely good-cause finding to extend the ninety-one-day period. But Roberson introduces waiver as a counterweight: if defense counsel accepts a schedule outside the ninety-one days or engages in conduct incompatible with asserting the deadline, the claim can be lost. This will limit the availability of Weeks-style relief when scheduling acquiescence occurs.
• Elevated importance of defense objections and scheduling vigilance: Defense counsel must promptly and explicitly object to dates outside the ninety-one-day window or risk forfeiting the timing protection. Requests for continuances past the deadline, or even silent acquiescence, can be construed as waiver.
• Trial court best practices: Although waiver can salvage a late determination, courts should continue to make express, contemporaneous good-cause findings on the record when setting hearings beyond ninety-one days. This aligns with Weeks and avoids later litigation over waiver or invited error.
• Prosecution strategy: The People can point to defense acquiescence or requests for continuances as waiver. Alternatively, consistent with the concurrence, the People may argue that the defendant’s assent independently establishes “good cause” to extend the deadline.
• Counsel’s agency over statutory rights: Finney’s principle—that counsel can waive statutory rights—takes on practical resonance in restitution. Clients and counsel must coordinate early on scheduling decisions, given the high stakes and the ease with which waiver can be implied.
• Victims’ interests: Roberson reduces the risk that restitution awards will be vacated solely for timing defects when the defendant has consented to or requested post-deadline action, aligning outcomes with the legislature’s remedial purpose in the restitution statute.

Note that the Court did not reach whether violations could be deemed harmless error; that question was left for another day. The remand signals that other appellate issues—beyond the ninety-one-day challenge—remain live.

Complex Concepts Simplified

• Jurisdictional vs. claim-processing rules: A jurisdictional rule limits a court’s fundamental power to act; it cannot be waived or forfeited. A claim-processing rule is a statutory or procedural requirement that governs how and when the court should act; it can be waived. The ninety-one-day restitution deadline is a claim-processing rule, not a jurisdictional bar.
• Waiver vs. forfeiture vs. invited error: Waiver is the intentional (or in statutory contexts, voluntary) relinquishment of a right, including by conduct inconsistent with asserting it. Forfeiture is a failure to timely assert a right, often triggering plain error review. Invited error arises when a party induces or agrees to a course of action and then complains about it on appeal; invited error generally precludes relief. In Roberson, the majority finds waiver; the concurrence sees invited error or good cause.
• Statutory vs. constitutional waiver standards: For statutory rights (like the ninety-one-day deadline), the waiver need not be “knowing and intelligent.” It must be voluntary and can be inferred from counsel’s conduct (Finney). For constitutional rights, the standard is higher: “intentional relinquishment of a known right or privilege” (Rediger/Donahue).
• Good cause under section 18-1.3-603(1)(b): Weeks requires a timely, express finding of good cause to extend the ninety-one days. The concurrence in Roberson suggests that a defendant’s agreement to a post-deadline setting can itself establish good cause—another avenue, separate from waiver, to sustain late restitution proceedings.
• “Reserving” restitution in plea agreements: Plea terms often stipulate a minimum or partial amount and reserve the right to seek additional restitution after sentencing. While reservation preserves the ability to seek more, it does not displace statutory timing rules. Roberson shows that defendants who later accept post-deadline calendars may waive the timing objection.

Application to the Facts

The dispositive facts are straightforward:

• Defense counsel accepted an October 2 hearing date outside the ninety-one days after requesting time to review the prosecution’s documentation.
• Defense counsel continued to seek additional continuances extending well past the statutory window.
• No timing objection was raised until over a year after sentencing, at the conclusion of the restitution hearing.

These facts demonstrate, under Forgette and Finney, a voluntary and implied waiver of the statutory right. The court of appeals’ reliance on Weeks—while faithful to Weeks’ core holding—did not account for waiver as a separate, dispositive doctrine. The Supreme Court’s correction ensures that Weeks cannot be invoked to vacate restitution where the defendant’s own litigation conduct reflects acquiescence to a post-deadline process.

Practice Pointers

• Defense counsel: If you intend to preserve a Weeks challenge, object on the record to any post-deadline hearing date and request that the court make a timely, express good-cause finding if an extension is unavoidable.
• Prosecutors: When defense accepts or requests settings beyond ninety-one days, document that assent. Be prepared to argue waiver, invited error, and/or that the assent itself is “good cause.”
• Trial courts: Even when the parties agree to a post-deadline schedule, make an express, contemporaneous good-cause finding to avoid later disputes and to harmonize with Weeks.
• Appellate counsel: Evaluate the timeline carefully for waiver signals—acceptance of dates, continuances, and the timing of objections. Roberson narrows Weeks-based vacatur when the record shows acquiescence.

Conclusion

People v. Roberson establishes a significant refinement to Colorado restitution law: the ninety-one-day deadline to determine and order restitution is a waivable claim-processing rule, and a defendant’s acceptance of a hearing date outside that period, coupled with subsequent continuances, can constitute a voluntary waiver of the statutory timing right. The decision distinguishes Weeks by recognizing waiver as a separate, dispositive doctrine when a defendant’s conduct is inconsistent with asserting the deadline.

The concurrence underscores alternative grounds—invited error and good cause—on which late restitution determinations may also be sustained, signaling multiple doctrinal pathways for affirmance where defense counsel acquiesces to scheduling beyond ninety-one days. Together with Babcock, Roberson recalibrates the post-Weeks framework, sharpening the obligations of counsel and courts in managing restitution timelines and reducing the risk of vacatur based solely on timing defects in the face of defense acquiescence.

In the broader legal context, Roberson reinforces the line between jurisdictional and claim-processing rules, clarifies the standards for waiver of statutory rights, and promotes procedural clarity in restitution proceedings—all with a view toward balancing defendants’ statutory protections, orderly court administration, and the remedial purposes of Colorado’s restitution scheme.