Restitution’s Ninety-One-Day Deadline Is Directory and Waivable: Implied Waiver Occurs When a Defendant Requests a Hearing Beyond the Statutory Period

Restitution’s Ninety-One-Day Deadline Is Directory and Waivable: Implied Waiver Occurs When a Defendant Requests a Hearing Beyond the Statutory Period

Introduction

In Babcock v. People, 2025 CO 26, 569 P.3d 850, the Colorado Supreme Court resolved a recurring problem in post-sentencing restitution practice: What happens when a court determines the amount of restitution after the ninety-one-day period referenced in section 18-1.3-603(1)(b), C.R.S. (2024)? The Court held that the ninety-one-day deadline is not jurisdictional and therefore can be waived. It further concluded that defense counsel’s request to set a restitution hearing beyond that deadline constituted an implied waiver of the right to have the amount determined within ninety-one days.

The case arises from a deferred judgment in which the trial court reserved restitution. The prosecution timely moved for restitution; defense counsel objected and requested a hearing after the ninety-one-day mark, citing the unfolding COVID-19 pandemic. The trial court set the hearing for August—well beyond the statutory period—and awarded the requested $12,258.83. On appeal, the defendant invoked People v. Weeks, 2021 CO 75, 498 P.3d 142, arguing the court “lacked authority” to impose restitution after the deadline without a timely “good cause” finding. The Court of Appeals affirmed, and the Colorado Supreme Court granted certiorari on three questions: whether Weeks required vacatur; whether the deadline is jurisdictional; and whether, if not jurisdictional, the deadline can be waived by a defense request for a hearing beyond the period.

Writing for the Court en banc, Justice Hood (joined by Justices Boatright, Hart, Samour, and Berkenkotter) affirmed. Justice Gabriel, joined by Chief Justice Márquez, concurred in the judgment only, rejecting the majority’s waiver analysis and instead concluding that the record established “good cause” to extend the deadline. The opinion issued May 27, 2025; rehearing was denied June 23, 2025.

Summary of the Opinion

  • The Court distinguishes Weeks: although Weeks held the court “lacked authority” to impose restitution long after ninety-one days absent a timely “good cause” finding, waiver was not at issue there. Here, defense counsel requested a hearing beyond ninety-one days and never insisted that the amount be determined by the ninety-first day.
  • The ninety-one-day deadline in section 18-1.3-603(1)(b) is not jurisdictional. The statute does not explicitly strip jurisdiction; uses affirmative rather than prohibitory language; provides no consequence for noncompliance; and a jurisdictional reading would frustrate the statute’s victim-centered purposes and its directive to be liberally construed.
  • Because the deadline is not jurisdictional, it can be waived. Defense counsel’s request for a hearing outside the ninety-one-day period constituted an implied, voluntary waiver of the statutory right to a timely determination of the restitution amount. As a result, the restitution order stands.

Concurring in the judgment, Justice Gabriel would affirm on a different ground: he would treat the defense-requested continuance as “good cause” to extend the court’s deadline on the record, and he would recalibrate Weeks to require that good cause be shown on the record before the deadline expires, but not necessarily through an express trial-court finding. He also cautions that the majority’s approach dilutes the meaning of “waiver,” which Rediger defined as “the intentional relinquishment of a known right,” and risks collapsing the waiver–forfeiture distinction.

Analysis

Precedents Cited and Their Influence

  • People v. Weeks, 2021 CO 75, 498 P.3d 142:
    • Held that section 18-1.3-603(1)(b) sets the court’s deadline to determine restitution and that any extension requires an express “good cause” finding before the deadline expires; also held section 18-1.3-603(2)(a) sets the prosecution’s filing deadline, extendable upon “extenuating circumstances.”
    • Concluded the trial court “lacked authority” to impose restitution when it set the amount nearly a year late without a timely good-cause finding.
    • In Babcock, the Court stresses that Weeks did not address waiver, and clarifies via Tennyson that “authority” does not equal “jurisdiction.” Weeks therefore does not compel vacatur where the defense itself sought a post-deadline hearing.
  • Tennyson v. People, 2025 CO 31, 569 P.3d 815 (companion case):
    • Cited for the proposition that “authority” and “jurisdiction” are distinct. This distinction permits the Court to hold that missing the ninety-one-day mark implicates a directory case-management rule rather than subject-matter jurisdiction.
  • People v. Roberson, 2025 CO 30, 569 P.3d 811 (companion case):
    • Used to explain why Weeks is distinguishable when a defendant affirmatively requests a hearing beyond ninety-one days and does not insist the amount be set by day ninety-one. This posture supports implied waiver.
  • Jurisdictional framework:
    • People in Interest of J.W. v. C.O., 2017 CO 105, 406 P.3d 853, and People v. Sprinkle, 2021 CO 60, 489 P.3d 1242: define subject-matter and personal jurisdiction and reiterate that jurisdiction is the court’s power over the case and parties.
    • Wood v. People, 255 P.3d 1136 (Colo. 2011): the legislature may limit subject-matter jurisdiction, but it must do so explicitly.
    • Currier v. Sutherland, 218 P.3d 709 (Colo. 2009) and section 16-14-104(1), C.R.S.: examples of a statute that explicitly withdraws jurisdiction when a temporal requirement is unmet (an “in no event” style jurisdiction-stripping provision).
  • Directory versus jurisdictional markers:
    • Pearson v. District Court, 924 P.2d 512 (Colo. 1996) and DiMarco v. Dep’t of Revenue, 857 P.2d 1349 (Colo. App. 1993): affirmative “shall be determined” language tends to indicate a directory rule; prohibitory “in no event later than” language indicates a stricter, possibly jurisdictional rule.
    • Kemper v. Kemper, 140 Colo. 367, 344 P.2d 449 (1959) and General Accident v. Cohen, 73 Colo. 459, 216 P. 522 (1923): where a statute prescribes no penalty for noncompliance, the provision is generally directory.
    • City & County of Denver Sch. Dist. No. 1 v. Denver Classroom Teachers Ass’n, 2017 CO 30, 407 P.3d 1220: directory provisions do not automatically invalidate actions taken late.
  • Statutory construction:
    • Cowen v. People, 2018 CO 96, 431 P.3d 215; Pineda-Liberato v. People, 2017 CO 95, 403 P.3d 160; Carrera v. People, 2019 CO 83, 449 P.3d 725; People v. Diaz, 2015 CO 28, 347 P.3d 621: the Court applies plain-meaning, whole-statute, and context-focused reading to effectuate legislative intent.
  • Waiver of statutory rights:
    • Finney v. People, 2014 CO 38, 325 P.3d 1044; Forgette v. People, 2023 CO 4, 524 P.3d 1; People v. Smiley, 2023 CO 36, 530 P.3d 639; Moran v. Burbine, 475 U.S. 412 (1986): statutory rights can be waived voluntarily, and waiver may be implied by conduct inconsistent with the right’s assertion; counsel may waive statutory rights.
    • People v. Rediger, 2018 CO 32, 416 P.3d 893; Dep’t of Health v. Donahue, 690 P.2d 243 (Colo. 1984); People v. Curtis, 681 P.2d 504 (Colo. 1984); Derby v. Police Pension Relief Bd., 159 Colo. 468, 412 P.2d 897 (1966): define waiver as the “intentional relinquishment of a known right” and distinguish waiver (which extinguishes error) from forfeiture (which allows plain-error review). These principles animate Justice Gabriel’s concurrence, which warns against diluting the waiver standard.
  • Victims’ restitution framework:
    • Sections 18-1.3-601(1)(g) and (2), C.R.S.: articulate the purposes of the restitution scheme—expeditious, effective assessment and collection, liberal construction to ensure victims are made whole.
    • Section 24-4.1-302.5(1)(h), C.R.S.: confirms victims’ statutory right to restitution.
  • Snow v. People, 2025 CO 32, 569 P.3d 835 (companion case):
    • Referenced in a footnote to distinguish disputes about liability to pay restitution from disputes about the amount. In Babcock, liability was not contested.

Legal Reasoning

1) Weeks is distinguishable

Weeks invalidated a restitution order entered nearly a year late without a timely good-cause extension. But waiver was not litigated in Weeks. In Babcock (and the companion Roberson), the defense itself asked for a hearing beyond ninety-one days and did not insist that the amount be set by the ninety-first day. That conduct is inconsistent with asserting the statutory timing right.

2) The ninety-one-day deadline is not jurisdictional

Applying de novo statutory interpretation, the Court treated section 18-1.3-603(1)(b)’s timing language as directory rather than jurisdictional, emphasizing four features:

  • No express jurisdictional language: The provision contains no statement that courts lose jurisdiction after ninety-one days. Wood teaches that jurisdictional limitations must be explicit.
  • Affirmative phrasing: The statute says the amount “shall be determined within the ninety-one days” (affirmative), not “in no event later than” (prohibitory). Pearson and DiMarco treat affirmative phrasing as more consistent with directory provisions.
  • No statutory consequence for noncompliance: Where a statute neither prescribes a penalty nor attaches consequences to noncompliance, Kemper and Denver Classroom Teachers suggest a directory reading.
  • Consistency with legislative purpose: Treating the deadline as jurisdictional would undermine the statute’s purpose to provide full restitution to victims expeditiously, as well as the directive to construe the statute liberally in favor of ordering and collecting restitution. A jurisdictional reading would deny victims compensation because of court delay alone.

To sharpen the point, the Court contrasted section 18-1.3-603(1)(b) with section 16-14-104(1), which explicitly withdraws jurisdiction if a trial does not commence within a specified period—demonstrating the kind of clear jurisdiction-stripping language the General Assembly knows how to deploy.

3) Because the deadline is directory, it can be waived—impliedly

The Court reviewed waiver de novo and applied the statutory-right waiver caselaw: a statutory right may be waived voluntarily and need not be knowing and intelligent in the constitutional sense. Waiver may be implied by conduct manifesting an intent to relinquish the right or conduct inconsistent with its assertion. Defense counsel asked to set the hearing beyond ninety-one days and did not simultaneously insist on compliance with the ninety-one-day cap. That request, made for pandemic-related scheduling, was voluntary and inconsistent with the right to a timely determination; therefore, it amounted to an implied waiver that extinguishes any claim of error based on the timing of the restitution order.

4) The concurrence’s different path: “Good cause,” not “waiver”

Justice Gabriel would affirm on a “good cause” theory. He reads section 18-1.3-603(1)(b) to require only that good cause be shown on the record before the deadline expires, not that the court make a talismanic, express finding. In his view, when the prosecution timely moves for restitution and the defense requests—and the court grants—a hearing beyond the ninety-one-day period, that record itself shows good cause to extend the court’s deadline. He warns that the majority’s relaxation of the waiver standard, especially for statutory rights, erodes Rediger’s clear distinction between waiver (intentional relinquishment of a known right) and forfeiture (failure to timely assert), with access-to-justice consequences if clients lose rights based on counsel’s oversights.

Impact and Practical Implications

Immediate doctrinal shifts

  • Nonjurisdictional deadline: Missing the ninety-one-day mark does not void a restitution order for lack of subject-matter jurisdiction. Late orders are not per se nullities.
  • Waiver available—and implied: Defendants can waive the timing protection, and waiver may be inferred from conduct—most prominently, requesting a hearing date beyond ninety-one days without preservation language.
  • Weeks reframed: Weeks’ “lacked authority” language does not equate to a jurisdictional bar. Weeks still governs when no waiver and no timely good-cause showing appear on the record, but it does not foreclose waiver-based affirmance.

Best practices for litigants and courts

  • For prosecutors:
    • File restitution information by sentencing or within ninety-one days under section 18-1.3-603(2)(a). If more time is needed, seek an explicit finding of “extenuating circumstances.”
    • If the hearing must occur beyond ninety-one days, build a record: either secure a defense waiver or invite a contemporaneous “good cause” finding. Although the majority affirms on waiver, the concurrence’s approach underscores the value of a clear record.
  • For defense counsel:
    • To preserve the ninety-one-day protection, avoid requesting dates beyond ninety-one days. If unavoidable, state on the record that the request is not intended to waive the statutory deadline and ask the court to make an express “good cause” finding limited to scheduling.
    • Recognize that asking for a post-deadline date now risks an implied waiver that extinguishes appellate review of a timeliness challenge.
  • For trial courts:
    • When setting a hearing past ninety-one days, either secure an express defense waiver or make a timely “good cause” finding on the record before the deadline expires—even if the majority’s reasoning does not require it, doing so harmonizes with Weeks and the concurrence’s cautionary view.

Longer-term effects

  • Victim compensation: The decision advances the restitution statute’s remedial purposes by reducing the likelihood that victims receive nothing due to post-sentencing scheduling issues.
  • Waiver jurisprudence: The Court draws a sharper distinction between waiver of statutory and constitutional rights. Expect future litigation at the margins—what counts as “voluntary” conduct implying waiver, and how Rediger’s framework coexists with Finney and Forgette.
  • Appellate review: Because waiver “extinguishes” error, defendants who request post-deadline hearings will likely be foreclosed from plain-error review of timeliness challenges on appeal.

Complex Concepts Simplified

  • Jurisdictional vs. directory deadlines:
    • Jurisdictional: If missed, the court loses power to act (unless the statute allows extension). These are rare and usually explicit in the statute (“no court shall have jurisdiction after…”).
    • Directory: A “should” rather than a “must” in terms of power—missing the deadline may be error, but it does not void the order, and parties can waive the protection.
  • Authority vs. jurisdiction:
    • “Authority” refers to whether a court should act under a statute’s rules; “jurisdiction” refers to the court’s legal power to act at all. A lack of authority does not automatically mean lack of jurisdiction.
  • Waiver vs. forfeiture:
    • Waiver: Giving up a right. For statutory rights, it must be voluntary and can be implied by conduct (e.g., asking for a post-deadline hearing).
    • Forfeiture: Failing to act in time. Forfeited claims can sometimes be reviewed for “plain error”; waived claims cannot.
  • Restitution orders under section 18-1.3-603(1):
    • Courts must at sentencing either (a) set a specific amount, (b) state that restitution is owed and set the amount within ninety-one days (extendable for good cause), (c) order future treatment costs, or (d) find no pecuniary loss.
  • Deferred judgment as a “conviction” for restitution:
    • For restitution purposes, entry of a deferred judgment counts as a “conviction” unless and until successfully completed.

Conclusion

Babcock marks a significant clarification in Colorado’s restitution jurisprudence. The Colorado Supreme Court holds that section 18-1.3-603(1)(b)’s ninety-one-day deadline is directory, not jurisdictional, and therefore subject to waiver. It further holds that defense counsel’s request to set a restitution hearing beyond the ninety-one-day window constitutes an implied waiver of the statutory timing right.

The decision narrows Weeks’ reach, confirms that a missed ninety-one-day date does not void a restitution order, and aligns restitution practice with the statute’s remedial, victim-centered purposes. At the same time, the concurrence warns against diluting the meaning of “waiver” and urges reliance on “good cause” extensions shown on the record rather than implied waiver to resolve scheduling slippage.

Key takeaway: litigants should build a clear record. Prosecutors should timely file and, when necessary, request express good-cause extensions. Defense counsel seeking later settings should either preserve the ninety-one-day protection expressly or anticipate that their request may be treated as an implied waiver. Courts should, when continuing matters beyond the statutory period, secure express waivers or make contemporaneous good-cause findings. Doing so honors both the statutory text and its purposes, ensures victims are compensated, and reduces avoidable appellate litigation.

Case Details

Year: 2025
Court: Colorado Supreme Court

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