Restitution Deadlines Are Directory and Waivable: Johnson v. People (Colo. 2025)

Introduction

In Johnson v. People, 2025 CO 29 (Colo. May 27, 2025), the Colorado Supreme Court addressed the operation of the state’s restitution statute, section 18-1.3-603, C.R.S. (2024), in the wake of its influential decision in People v. Weeks, 2021 CO 75. The case arises from a theft scheme by a Walmart loss-prevention employee, Darryl Cornelious Johnson, who pleaded guilty to felony and misdemeanor theft. The parties structured a plea agreement that deferred calculation of restitution for ninety-one days after sentencing.

The key issues presented were:

Whether the deadlines in § 18-1.3-603(2)(a)—requiring the prosecution to provide available restitution information at sentencing and otherwise within ninety-one days—are jurisdictional or instead directory and therefore waivable.
Whether Johnson could complain that the trial court lacked authority to set restitution under Weeks when he had agreed to, and acted consistently with, a post-sentencing timetable for determining restitution.
Whether the amount of restitution was “available” at sentencing, such that it should have been set then rather than later.

The Court ultimately did not reach the “availability” and timing merits because it concluded that Johnson waived his statutory claims. At the same time, the Court announced an important clarification of law: the deadlines in § 18-1.3-603(2)(a), like the ninety-one-day deadline in § 18-1.3-603(1)(b), are not jurisdictional and can be waived.

Summary of the Opinion

Writing for the Court en banc, Justice Hart held that:

The deadlines in § 18-1.3-603(2)(a) are not jurisdictional and may be waived. This aligns those deadlines with the Court’s contemporaneous holding in the companion case, Babcock v. People, that § 18-1.3-603(1)(b)’s ninety-one-day deadline is also nonjurisdictional.
Johnson waived his statutory rights in two ways: (1) explicitly, through his plea agreement and stipulation allowing ninety-one days to determine restitution, and (2) implicitly, by assenting to the court’s scheduling orders and by requesting a restitution hearing after the ninety-one-day period.
Because of waiver, the Court affirmed the court of appeals’ judgment without reaching the merits of Johnson’s Weeks-based challenges or his argument that the restitution amount was available earlier.

Justice Gabriel, joined by Chief Justice Márquez, concurred in the judgment but not in the majority’s waiver analysis. In their view, waiver requires the intentional relinquishment of a known right. They would affirm on alternative grounds: the trial court entered a restitution order on day ninety-one, thus complying with the statute; any later reconsideration beyond ninety-one days was invited by Johnson or supported by good cause based on his request for a hearing beyond the deadline.

Factual and Procedural Background

Johnson, a Walmart loss-prevention employee, admitted stealing cash and merchandise, was caught on surveillance video, and pleaded guilty to felony and misdemeanor theft. The plea agreement provided, among other terms:

Johnson would pay “all restitution within the term of [his] original sentence.”
The District Attorney would “act in good faith to provide correct information establishing the amount of restitution within [ninety-one] days of sentencing.”
Johnson understood court-ordered restitution was a condition of sentence.

A concurrent stipulation for deferred judgment further stated that restitution would be “determined within [ninety-one] days.” At the providency hearing, the court accepted the plea and ordered the prosecution to submit the restitution amount within ninety-one days, giving the defense sixty days to object thereafter.

On day ninety-one, the prosecution filed a proposed restitution order for $11,030.30, which the court signed the same day. The order permitted Johnson thirty days to object and request a hearing. Johnson objected and requested a hearing. After continuances requested by both sides, Johnson argued that under Weeks the court lacked authority to enter restitution and that the amount should have been set at sentencing because it was available then. The district court rejected these arguments, found the ninety-one-day deadline nonjurisdictional, held it could extend the deadline (even retroactively) for good cause, and treated Johnson’s objection and hearing request as good cause. It then awarded the requested amount.

After Weeks was decided—requiring an express good‑cause finding before the ninety-one-day period expires—the court of appeals affirmed in a divided decision. The majority concluded that the trial court’s orders, which contemplated defense objections beyond day ninety-one, effectively established good cause within the period. Judge Welling concurred, viewing Johnson’s assent to the ninety-one-day structure as dispositive. Judge Furman dissented, arguing the order was untimely and the amount was not shown to be unavailable at sentencing.

Detailed Analysis

1) Precedents and Authorities Cited

People v. Weeks, 2021 CO 75, 498 P.3d 142: The Court’s seminal restitution-timing decision. Weeks held that a court may extend the ninety-one-day deadline in § 18-1.3-603(1)(b) only on an express finding of good cause made before the deadline expires. In Johnson, Weeks framed the parties’ arguments and the court of appeals’ analysis. The Supreme Court distinguished Johnson from Weeks at the waiver stage, noting that in Weeks the defense neither explicitly nor implicitly waived statutory restitution rights and in fact timely objected to keeping restitution open indefinitely.
Babcock v. People, 2025 CO __: A companion case decided the same day. Babcock holds that § 18-1.3-603(1)(b)’s ninety-one-day deadline is not jurisdictional. Johnson extends that nonjurisdictional characterization to § 18-1.3-603(2)(a)’s timing requirements (i.e., provide available information at sentencing and otherwise within ninety-one days).
Finney v. People, 2014 CO 38, 325 P.3d 1044: Establishes that statutory rights (as distinct from fundamental constitutional rights) may be waived voluntarily; a knowing, intelligent waiver is not required. Counsel may waive a defendant’s statutory rights.
People v. Rediger, 2018 CO 32, 416 P.3d 893: Addresses the higher standard for waiving constitutional rights and articulates the invited error doctrine, which the concurring justices invoke to support affirmance.
Forgette v. People, 2023 CO 4, 524 P.3d 1: Permits finding waiver by implication when conduct manifests an intent to relinquish a right or is inconsistent with asserting it.
Richardson v. People, 2020 CO 46, 481 P.3d 1: Confirms waiver is reviewed de novo.
Statutory interpretation principles: Cowen v. People, Archuleta v. Roane, Denver Post Corp. v. Ritter, Dep’t of Nat. Res. v. 5 Star Feedlot, Inc., Pearson v. Dist. Ct., City & Cnty. of Denver Sch. Dist. No. 1 v. Denver Classroom Teachers Ass’n, Garcia v. People. The Court uses these to emphasize plain meaning, statutory context, indicative language (“shall”/“may” vs. prohibitive terms), the significance of the absence of statutory consequences, and the express legislative policy favoring full and expeditious restitution (§ 18-1.3-601(1)(g)(I), (2)).

2) The Court’s Legal Reasoning

a) Nonjurisdictional (Directory) Deadlines Under § 18-1.3-603(2)(a)

The Court extends the reasoning of Babcock to § 18-1.3-603(2)(a), concluding these timing requirements are directory rather than jurisdictional. Four features support this conclusion:

The statute does not declare the deadlines jurisdictional.
It uses affirmative “shall/may” language rather than prohibitive terms, which signals directory operation.
It specifies no remedy or consequence for missing the deadlines, a common marker of nonjurisdictional timing provisions.
Interpreting the provisions as directory advances the legislature’s explicit purpose to provide for and collect full restitution for victims “in the most expeditious manner” and to construe the restitution statutes liberally to ensure restitution is ordered and disbursed (§ 18-1.3-601(1)(g)(I), (2)). Treating the timing rules as jurisdictional could deprive victims of any restitution based on mere calendaring missteps.

b) Waiver of Statutory Restitution Rights

Having established the deadlines are nonjurisdictional, the Court turns to waiver. Because the rights at issue arise from statute—not the constitution—voluntary waiver suffices; knowing and intelligent waiver is not required (Finney). Waiver may be explicit (by words or writings) or implied (by conduct inconsistent with asserting the right) (Forgette), and counsel may waive a client’s statutory rights (Finney).

Applying these standards, the Court finds two independent bases for waiver:

Express waiver through plea documents. Johnson agreed the DA would provide restitution information within ninety-one days and that restitution would be determined within that period. He also agreed that restitution was a condition of his sentence and that he would pay “all restitution within the term of [his] original sentence.” He confirmed at the providency hearing that he understood and agreed to these terms. These commitments are inconsistent with asserting a right to have restitution set at sentencing or within a different timeframe.
Implied waiver through conduct. At sentencing, the court established a schedule that necessarily contemplated a final determination beyond ninety-one days: ninety-one days for the prosecution to calculate restitution and sixty days thereafter for the defense to object; later, the court’s order gave Johnson thirty days to object. Defense counsel did not object to these schedules and then requested a hearing after the ninety-one-day period, later arguing that the circumstances presented “good cause.” These choices are inconsistent with asserting that the court lacked authority to determine restitution outside the ninety-one days or without an earlier good-cause finding.

In contrast, the Court underscores that in Weeks the defense timely objected and did not waive the statutory timing rights, distinguishing that case from Johnson’s.

c) The Concurring Opinion’s Different Path to Affirmance

Justice Gabriel, joined by Chief Justice Márquez, concurs in the judgment but disputes the majority’s approach to implied waiver. Citing Rediger, he emphasizes that waiver means the intentional relinquishment of a known right and thus would not find implicit waiver on these facts. Instead, he would affirm because:

The trial court entered a restitution order on the ninety-first day, satisfying the statute’s timing demand.
Any later hearing beyond the deadline was either invited by Johnson—who requested it—or supported by good cause, given his assent to a post-deadline hearing.

The concurrence thus preserves a stricter view of waiver while reaching the same outcome due to statutory compliance and invited error/good cause principles.

3) Impact and Implications

a) Restitution Practice in Colorado

Deadlines are not jurisdictional. Both § 18-1.3-603(1)(b)’s ninety-one-day deadline (per Babcock) and § 18-1.3-603(2)(a)’s information-supply deadlines (per Johnson) are directory. A missed deadline does not void the court’s authority.
Waiver is a real constraint on appeals. Defendants who agree to restitution timetables in plea documents, accede to schedules that necessarily extend beyond ninety-one days, or request post-deadline hearings risk waiving timing objections on appeal—explicitly or implicitly.
Weeks still matters. Weeks’ requirement of an express good‑cause finding before the ninety-one-day period expires continues to govern when a court seeks to extend the statutory period. But after Johnson, even if a court errs under Weeks, that error can be waived (or, per the concurrence, invited) and will not strip the court of power.
Plea drafting and providency hearings are pivotal. The Court treated plea language and assent at providency as potent indicia of waiver. Prosecutors and courts will likely formalize restitution timelines in plea agreements, and defense counsel should preserve objections then and there if they intend to contest timing later.
Victim restitution protected. By construing deadlines as directory and the statute as to be liberally applied (§ 18-1.3-601(2)), the Court reduces the risk that victims lose restitution due to technical timing defects.

b) Strategic Considerations for Litigants

Defense counsel: If you intend to rely on Weeks, make a clear, contemporaneous objection to any schedule that contemplates a post-ninety-one-day determination and avoid requesting relief that would push proceedings beyond the deadline. Otherwise, the Johnson waiver analysis (or invited error, under the concurrence) may foreclose appellate relief.
Prosecutors: Embed explicit restitution-timing terms in plea agreements. Seek an express, on-the-record good‑cause finding before day ninety-one if you will not meet the deadline, and be prepared to show diligence (e.g., when loss information from victims arrives late).
Trial courts: To honor Weeks while avoiding unnecessary litigation, make clear, pre-expiration good‑cause findings when timelines cannot be met. Document the basis (e.g., late-received documentation, defense-requested continuances). Note defense assent or requests that necessitate post-deadline action.

Complex Concepts Simplified

Jurisdictional vs. directory deadlines: A jurisdictional deadline limits a court’s power: miss it and the court cannot act. A directory (nonjurisdictional) deadline directs how things should happen but missing it does not strip the court of authority. Johnson holds the restitution statute’s key timing rules are directory and thus waivable.
Waiver of statutory rights: For statutory (non-constitutional) rights, a voluntary waiver is enough. It can be explicit (e.g., in a plea agreement) or implied by conduct inconsistent with later asserting the right (e.g., requesting a hearing after the deadline).
Good cause under Weeks: If the court cannot determine restitution within ninety-one days, it must expressly find “good cause” to extend the deadline before the period expires. Examples often include late-arriving documentation or requested continuances. Johnson does not relax this rule; it clarifies that even if Weeks is not satisfied, the error is not jurisdictional and can be waived.
Invited error: A party cannot complain on appeal about an error that the party induced or requested. The concurrence uses this principle to support affirmance because Johnson himself sought a post-deadline hearing.
“Available” restitution information: Section 18-1.3-603(2)(a) requires the prosecution to provide restitution information available at sentencing, and otherwise within ninety-one days. Johnson challenged whether the information here was “available” at sentencing. The Supreme Court did not reach that question because of waiver.

Conclusion

Johnson v. People establishes two important propositions in Colorado’s restitution jurisprudence. First, the timing provisions in § 18-1.3-603(2)(a) are nonjurisdictional and therefore subject to waiver—bringing them into alignment with the ninety-one-day deadline in § 18-1.3-603(1)(b) as clarified in the companion Babcock decision. Second, defendants may waive statutory restitution timing rights explicitly (through plea terms) and implicitly (through conduct inconsistent with asserting those rights), and counsel’s actions can effect such waiver.

The decision underscores the continuing vitality of Weeks’ good‑cause requirement for extending the ninety-one-day deadline, but reframes Weeks violations as nonjurisdictional errors that can be waived or invited. Practically, Johnson encourages clear restitution timelines in plea agreements, timely good‑cause findings when extensions are needed, and vigilant objection by defendants who intend to preserve Weeks-based challenges. Normatively, the decision effectuates the legislature’s mandate to secure full and expeditious restitution for victims by preventing forfeiture of restitution based on strict or technical timing lapses untethered to prejudice.

Finally, the concurrence signals an ongoing debate about the standard for waiver of statutory rights. While the majority accepts implied waiver from conduct, the concurrence would require intentional relinquishment of a known right. Even so, both paths converge on the same result here: the restitution order stands. Johnson thus serves as both a cautionary tale for litigants about the consequences of their strategic choices and a clarifying precedent that stabilizes restitution practice post-Weeks.

Case Information

Case: Johnson v. People, 2025 CO 29, No. 23SC525 (Colo. May 27, 2025) — en banc. Opinion by Justice Hart, joined by Justices Boatright, Hood, Samour, and Berkenkotter. Justice Gabriel, joined by Chief Justice Márquez, concurred in the judgment.