Illegal-Manner, Not Illegal-Sentence: Timeliness Challenges to Restitution Amounts under § 18-1.3-603(1)(b) Must Be Brought Within Crim. P. 35(b)’s Deadline

Illegal-Manner, Not Illegal-Sentence: Timeliness Challenges to Restitution Amounts under § 18-1.3-603(1)(b) Must Be Brought Within Crim. P. 35(b)’s Deadline

Introduction

In Tennyson v. People, 2025 CO 31, the Colorado Supreme Court resolved a recurring and consequential question at the intersection of restitution and postconviction practice: when a sentencing court, at the time of sentencing, enters a restitution order under section 18-1.3-603(1)(b) finding general liability for restitution but postponing the specific amount, and the court later sets the amount after the statutory deadline, is a defendant’s postconviction challenge to that untimely amount an “illegal sentence” claim (which may be brought at any time) or a “sentence imposed in an illegal manner” claim (which is strictly time-limited)?

Writing for the Court, Justice Samour held that such a challenge is an illegal-manner claim, not an illegal-sentence claim. Because illegal-manner claims under Crim. P. 35(a) must be filed within the time allowed for sentence reduction under Crim. P. 35(b) (120 days at the time of this case; now 126 days absent an appeal), Audrey Lee Tennyson’s challenge—filed roughly ten years after sentencing—was time-barred. The Court reaffirmed that a sentence must include one of the four restitution orders identified in § 18-1.3-603(1), and clarified that:

  • When a court enters a subsection (1)(b) restitution order at sentencing (liability now, amount later), the subsequent determination of the amount is severed from the sentence and judgment of conviction.
  • Accordingly, a challenge to the untimely determination of that amount is a process challenge—an illegal-manner claim—subject to Rule 35(b)’s deadline, not an illegal-sentence claim.
  • The missed subsection (1)(b) deadline deprives the court of statutory authority—not jurisdiction—to set the amount; the deadline is not jurisdictional.

Justice Gabriel dissented, warning that the majority’s rule effectively insulates frequent statutory violations from any remedy in many cases and undermines the Court’s recent decision in People v. Weeks, 2021 CO 75, which enforced the statutory deadlines for restitution.

Summary of the Opinion

The Court affirmed the court of appeals and held:

  • Colorado’s restitution scheme requires every sentence to include one of four restitution orders under § 18-1.3-603(1). A “blanket deferral” of restitution (deferring both liability and amount) is not among the four options and renders the sentence illegal and correctable at any time. The Court explicitly reaffirmed this axiom.
  • In Tennyson’s case, the sentencing court effectively entered a § 18-1.3-603(1)(b) order: it found Tennyson liable for restitution at sentencing and deferred the amount. The prosecution timely submitted a proposed amount within 90 days, but the court entered the amount more than 90 days after sentencing without a timely, express good-cause finding. Under Weeks, the court thus lacked statutory authority to impose the amount when it did.
  • Nevertheless, a postconviction challenge to the untimely amount in the § 18-1.3-603(1)(b) posture is an illegal-manner claim, not an illegal-sentence claim, because the amount is severed from the sentence and judgment of conviction. Such claims must be filed within Rule 35(b)’s timeline (120 days here). Tennyson’s challenge was therefore time-barred.
  • The Court clarified an important nuance: when a court imposes a § 18-1.3-603(1)(a) order (setting liability and amount at sentencing), the amount is part of the sentence; a Rule 35(a) attack on the amount in that context is an illegal-sentence claim and not time-limited.
  • “Authority” in Weeks meant statutory power, not jurisdiction. The § 18-1.3-603(1)(b) deadline is not jurisdictional (consistent with today’s companion decision in Babcock v. People, 2025 CO 26).
  • The proper vehicle to remedy a late amount setting in the § 18-1.3-603(1)(b) posture is a direct appeal from the separate, final restitution-amount judgment, which remains appealable whenever entered.

Factual and Procedural Background

In 2008, Tennyson pleaded guilty to two counts of aggravated robbery. The plea agreement stipulated that restitution would be owed to all victims in all counts and cases covered by the agreement, including dismissed counts, and contemplated that the prosecution would provide restitution information within 90 days of sentencing.

At sentencing, the court imposed concurrent 26-year DOC terms and, consistent with § 18-1.3-603(1)(b), found Tennyson liable for restitution while reserving the amount. The prosecution timely submitted a proposed restitution amount on day 86. The court set the amount on day 136 and later corrected an arithmetic error on day 155. The court made no timely, express good-cause finding under § 18-1.3-603(1)(b).

Tennyson did not file a direct appeal. Years later, he filed a Crim. P. 35(a) motion asserting that the restitution award was void because it was set after the statutory deadline and without good cause. The district court denied relief; the court of appeals affirmed, holding that Tennyson’s challenge was an untimely illegal-manner claim. The Supreme Court granted certiorari on whether such a postconviction challenge is cognizable as an illegal-sentence claim under Crim. P. 35(a).

Analysis

Precedents and Authorities Cited

  • Sanoff v. People, 187 P.3d 576 (Colo. 2008): The Court held that a § 18-1.3-603(1)(b) order distinguishes between restitution liability (part of the sentence and judgment of conviction) and the amount, which may be determined post-sentencing. The amount is severed from the meaning of “sentence” under Crim. P. 32 when liability is found under subsection (1)(b). Accordingly, the restitution-amount order is a separate, final, appealable judgment that can proceed while a direct appeal from the judgment of conviction is pending.
  • People v. Baker, 2019 CO 97M, 452 P.3d 759: Presentence confinement credit (PSCC) is not a component of the sentence; errors may be clerical (Crim. P. 36) or, if not, challenges to the calculation constitute illegal-manner claims under Crim. P. 35(a) and are time-limited. The Court analogized restitution amounts in the § 18-1.3-603(1)(b) posture to Baker’s PSCC framework: both are not part of the sentence and thus fall on the “illegal manner” side.
  • People v. Weeks, 2021 CO 75, 498 P.3d 142: Construed § 18-1.3-603’s dual deadlines. The prosecution must present restitution information by sentencing or within 91 days upon a finding of extenuating circumstances (§ 18-1.3-603(2)); the court must determine the amount within 91 days (or later upon a timely, express good-cause finding) under § 18-1.3-603(1)(b). On direct appeal, a late amount order entered without timely good cause must be vacated because the court lacked statutory authority to impose it.
  • Meza v. People, 2018 CO 23, 415 P.3d 303; People v. Belibi, 2018 CO 24, 415 P.3d 301: Reinforced that where no § 18-1.3-603(1)(b) or (1)(c) reservation occurs at sentencing, the amount set at sentencing under (1)(a) is final and appealable; later changes require statutory authorization. Both cases use “power/authority” language to describe statutory limits, consistent with Tennyson’s non-jurisdictional framing.
  • Delgado v. People, 105 P.3d 634 (Colo. 2005); Chae v. People, 780 P.2d 481 (Colo. 1989); Craig v. People, 986 P.2d 951 (Colo. 1999): A sentence is illegal if any component fails to comply with statutory requirements. These cases illustrate the breadth of “illegal sentence” corrections when a sentence exceeds statutory authorization. Tennyson distinguishes them by emphasizing that, in the § 18-1.3-603(1)(b) setting, the amount is severed from the sentence itself.
  • Hunsaker v. People, 2021 CO 83, 500 P.3d 1110; People v. Bowerman, 258 P.3d 314 (Colo. App. 2010): Hunsaker catalogues examples of illegal sentences, including restitution not permitted or in the wrong amount, but Tennyson clarifies that such “wrong amount” claims are illegal-sentence claims only when the amount is part of the sentence (i.e., a § 18-1.3-603(1)(a) order). Bowerman’s description of “illegal manner” as a failure to follow essential procedures is adopted.
  • Babcock v. People, 2025 CO 26: A companion decision establishing that the § 18-1.3-603(1)(b) deadline is not jurisdictional. Tennyson explicitly aligns with Babcock’s non-jurisdictional characterization.

Legal Reasoning

The Court’s reasoning proceeds in three steps.

  1. Structure of Rule 35 and the illegal sentence/illegal manner divide: Crim. P. 35(a) permits two distinct species of claims: illegal sentences (not authorized by law or imposed without jurisdiction), which may be corrected at any time; and sentences imposed in an illegal manner (procedural defects in imposing the sentence), which are time-limited by Crim. P. 35(b). The Court warns against conflating the two, emphasizing that doing so would erase important temporal limits.
  2. Restitution’s four-order framework and the “severance” principle: Under § 18-1.3-603(1), every sentence must include one or more of four restitution directives. Critically, subsection (1)(b) authorizes a court to find liability at sentencing while postponing the amount. Sanoff teaches that, in such cases, the amount is severed from the sentence and judgment of conviction. Thus, the subsequent order setting the amount is not part of the sentence; it is a separate, final judgment.
  3. Application to timeliness challenges of restitution amounts under subsection (1)(b): Because the amount is not part of the sentence in the (1)(b) posture, a challenge to a late amount order is a process challenge—a claim that the sentencing process deviated from statutory requirements (i.e., an illegal-manner claim). Baker supplies the analogy: PSCC is calculated independently from the sentence and later credited; disputes over PSCC are illegal-manner claims unless clerical. Similarly, the timeliness of the amount-setting event is about procedure, not the legality of the sentence.

The Court adds two important clarifications:

  • Limited carve-out for § 18-1.3-603(1)(a) cases: Where the court sets the restitution amount at sentencing (a (1)(a) order), the amount is part of the sentence and judgment of conviction. In that scenario, a Crim. P. 35(a) attack on the amount is an illegal-sentence claim not subject to Rule 35(b)’s time limit.
  • “Authority” versus “jurisdiction” in Weeks: The Court harmonizes Weeks by explaining that “lack of authority” there was shorthand for a lack of statutory power to act after the deadline, not a lack of subject-matter or personal jurisdiction. This distinction matters because only jurisdictional defects or illegal sentences can be corrected “at any time.” The subsection (1)(b) deadline is not jurisdictional; it restricts statutory authority, not the court’s subject-matter jurisdiction.

Finally, as to remedy and timing, the Court underscores that a defendant always retains the ability to file a direct appeal from the separate, final order setting the restitution amount—regardless of when the sentencing occurred—so long as the appeal from that separate order is timely. That direct-appeal route (as in Weeks) yields vacatur of a late amount order. But absent a direct appeal, a defendant cannot resurrect the issue years later through an untimely Rule 35(a) illegal-manner claim.

The Dissent

Justice Gabriel dissented, arguing that:

  • The amount of restitution is a component of the sentence, whether set at sentencing or later, and therefore challenges to an untimely amount are illegal-sentence claims that may be brought at any time;
  • The majority’s reading effectively neutralizes Weeks by foreclosing remedies for common statutory violations in many cases (especially where the Rule 35(b) window closes before the court even sets the amount);
  • Sanoff addressed finality for appellate jurisdiction and should not be read to remove the restitution amount from the sentence for Rule 35 purposes;
  • The majority’s approach is internally inconsistent: it declares the amount not part of the sentence but treats challenges as “illegal manner” claims, which by definition correct a sentence “imposed in an illegal manner.”

The majority responds that Sanoff’s severance principle applies with equal force in the Rule 35 context; that illegal-manner claims correct the process by which the sentence was imposed even if the challenged step (here, a later amount order) is severed from the sentence; and that the direct-appeal route from the separate restitution-amount judgment supplies an adequate remedy for late orders.

Impact and Practical Implications

Tennyson recalibrates the litigation map for restitution challenges in Colorado:

  • For defense counsel:
    • If the court enters a § 18-1.3-603(1)(b) order at sentencing (liability now, amount later), calendar two clocks:
      • The prosecution’s filing deadline under § 18-1.3-603(2) (by sentencing or within 91 days upon a timely, express finding of “extenuating circumstances”).
      • The court’s determination deadline under § 18-1.3-603(1)(b) (within 91 days upon a timely, express “good cause” finding).
    • If the court sets the amount late and without the necessary contemporaneous, express findings, the cleanest remedy is a direct appeal from the separate restitution-amount judgment, seeking vacatur under Weeks.
    • Do not rely on Rule 35(a) to challenge a late amount years later. In the (1)(b) posture, a Rule 35(a) attack is an illegal-manner claim that must be filed within the Rule 35(b) window (now 126 days) after the sentence is imposed. In many cases, that clock will expire before the amount is even set.
    • Distinct rule for § 18-1.3-603(1)(a): if the amount is set at sentencing, challenges to the amount fall on the “illegal sentence” side and are not time-limited under Rule 35(a).
  • For prosecutors:
    • File restitution materials by sentencing or within 91 days and seek timely, express “extenuating circumstances” findings if more time is needed (§ 18-1.3-603(2)).
    • Urge the court to set the amount within 91 days post-sentencing or, if necessary, to enter timely, express “good cause” findings before the deadline expires (§ 18-1.3-603(1)(b)).
    • Be aware that on direct appeal, a late amount order will be vacated under Weeks; the only safe harbors are compliance with deadlines or timely extension findings.
  • For trial courts:
    • At sentencing, enter one of the four statutorily enumerated restitution orders. A “global deferral” of restitution (deferring both liability and amount) is not authorized and renders the sentence illegal.
    • When proceeding under § 18-1.3-603(1)(b), make timely and express findings to extend deadlines where justified; do so before the deadlines expire.
    • Recognize that the order setting the amount after a (1)(b) liability finding is a separate, appealable judgment that can issue even while an appeal from the judgment of conviction is pending.
  • Doctrinal clarifications cemented:
    • Severance principle: in § 18-1.3-603(1)(b) cases, the restitution amount is not part of the sentence or judgment of conviction; in § 18-1.3-603(1)(a) cases, it is.
    • Authority versus jurisdiction: missing the (1)(b) deadline strips statutory authority to impose the amount but does not divest jurisdiction; therefore, untimely Rule 35(a) claims cannot be saved by labeling the defect “jurisdictional.”
    • Remedy path: vacatur of an untimely amount order remains the remedy on direct appeal (Weeks), but not via untimely Rule 35(a) motions framed as illegal-sentence claims.

Complex Concepts Simplified

  • Illegal sentence vs. sentence imposed in an illegal manner:
    • Illegal sentence: a sentence not authorized by law (e.g., exceeds statutory maximum, violates mandatory parole statutes) or imposed without jurisdiction; correctable at any time.
    • Illegal manner: the court failed to follow required procedures in imposing the sentence (e.g., missed statutory steps or deadlines); correctable only within the Rule 35(b) time limit (126 days now; 120 days when Tennyson was sentenced) unless addressed on direct appeal.
  • The four restitution orders under § 18-1.3-603(1):
    • (1)(a): order of a specific amount at sentencing—amount is part of the sentence.
    • (1)(b): order finding liability at sentencing, amount to be determined within 91 days (or later with timely, express good cause)—amount is not part of the sentence; it is a separate judgment.
    • (1)(c): order for future treatment costs—can be in addition to or in place of an amount order.
    • (1)(d): finding that no victim suffered pecuniary loss—no restitution required.
  • Deadlines and required findings:
    • Prosecution’s deadline to present restitution information: by sentencing or within 91 days; extendable only upon an express, timely finding of “extenuating circumstances.” § 18-1.3-603(2).
    • Court’s deadline to set the amount under a (1)(b) order: within 91 days; extendable only upon an express, timely “good cause” finding. § 18-1.3-603(1)(b).
  • Authority vs. jurisdiction:
    • Authority (or statutory power): what the statute permits a court to do; acting outside it yields an order subject to vacatur on direct appeal.
    • Jurisdiction: the court’s power to adjudicate the case at all; defects here render orders void and correctable at any time. The restitution deadlines are not jurisdictional.
  • Presentence Confinement Credit (PSCC) analogy (Baker):
    • PSCC is not part of the sentence, is calculated separately, and is credited against the sentence. Challenges to PSCC calculations are illegal-manner claims subject to time limits, mirroring how late amount determinations are treated in § 18-1.3-603(1)(b) cases.
  • Mittimus:
    • The written judgment and commitment order reflecting the sentence (and, if applicable, restitution). If an untimely amount order is vacated on direct appeal, the mittimus must be amended to reflect no restitution (§ 18-1.3-603(1)(d)), per Weeks.

Conclusion

Tennyson v. People clarifies—and narrows—the avenues for postconviction challenges to late restitution awards in Colorado. When, at sentencing, a court enters a § 18-1.3-603(1)(b) order finding liability and deferring the amount, the subsequent order setting the amount is severed from the “sentence” and judgment of conviction. A postconviction attack on the timeliness of that order is an illegal-manner claim, constrained by Rule 35(b)’s deadline. The proper avenue to remedy a late amount order is a direct appeal from the separate restitution-amount judgment, which remains available regardless of how long after sentencing the amount is set.

At the same time, the Court preserves an important counterpoint: when the restitution amount is imposed at sentencing under § 18-1.3-603(1)(a), the amount is part of the sentence, and a Rule 35(a) challenge to that amount proceeds as an illegal-sentence claim that is not time-limited. The Court also reaffirms that a sentence that fails to include any of the four authorized restitution orders is illegal and correctable at any time.

Tennyson thus refines the restitution landscape established in Sanoff, Meza, Belibi, and Weeks. It insists on strict adherence to the restitution statute’s deadlines (with timely, express findings where permitted), clarifies the non-jurisdictional nature of the § 18-1.3-603(1)(b) deadline, and channels remedies into the proper procedural vehicles. While the dissent warns of reduced access to remedies for statutory violations, the majority places the onus on timely direct appeals of restitution-amount judgments and on trial courts and prosecutors to comply with the statute’s textual commands. The decision will materially affect plea practice, sentencing protocols, and appellate strategy in Colorado restitution cases going forward.

Case Details

Year: 2025
Court: Colorado Supreme Court

Comments