Restitution Deadlines Are Directory and Waivable: Johnson v. People Extends Non‑Jurisdictional Reading to § 18‑1.3‑603(2)(a) and Confirms Waiver by Plea and Conduct

Introduction

In Johnson v. People, 2025 CO 29, 569 P.3d 844, the Colorado Supreme Court continues to refine the operation of Colorado’s restitution statute, § 18‑1.3‑603, in the wake of its earlier decision in People v. Weeks, 2021 CO 75, 498 P.3d 142. The case arises from a plea by a former Walmart loss‑prevention employee who admitted to theft and agreed to pay restitution. The central questions were procedural: whether the statute’s timing directives—requiring the prosecution to provide available restitution information at sentencing or within 91 days thereafter, and requiring the trial court to make a final restitution determination within 91 days absent good cause—are jurisdictional or directory, and whether the defendant waived any objection to timing noncompliance.

The Court holds that the deadlines in both § 18‑1.3‑603(1)(b) and § 18‑1.3‑603(2)(a) are directory and not jurisdictional—and therefore subject to waiver. Applying that framework, the Court concludes that the defendant, Darryl Johnson, explicitly waived his statutory timing rights through his plea agreement and implicitly waived them by assenting to the court’s scheduling and requesting a hearing outside the 91‑day window. The decision affirms the court of appeals but on different grounds, and it clarifies the doctrinal relationship between Weeks (insisting on an express, pre‑deadline good‑cause finding to extend the 91‑day period) and cases in which a defendant’s conduct waives those statutory protections.

Summary of the Opinion

• The Court holds that the deadlines in § 18‑1.3‑603(2)(a)—requiring the prosecution to present available restitution information at sentencing and otherwise within ninety‑one days—are directory, not jurisdictional, and thus can be waived. This aligns with the Court’s companion holding in Babcock v. People, 2025 CO 26, that the 91‑day deadline in § 18‑1.3‑603(1)(b) is also non‑jurisdictional.
• On the facts, Johnson waived his statutory timing claims in two ways:
  • Explicitly, in his plea agreement and deferred judgment stipulation (agreeing that the prosecution could provide the restitution amount within ninety‑one days and that restitution would be paid during the sentence term).
  • Implicitly, by not objecting when the court set an objection schedule that extended beyond ninety‑one days, and by requesting and proceeding with a restitution hearing outside the ninety‑one‑day period.
• Because of waiver, the Court does not reach the merits of Johnson’s arguments that (a) the amount was “available” at sentencing and therefore had to be set then; or (b) the court violated Weeks by entering its final order or making a good‑cause finding after the ninety‑one‑day period.
• Justice Gabriel (joined by Chief Justice Márquez) concurs in the judgment. He disagrees with the majority’s implied waiver analysis but concludes there was no error because the court entered a restitution order within the ninety‑one‑day period, and any later reconsideration beyond ninety‑one days was invited by the defendant’s objection or independently supported good cause.

Factual and Procedural Background

Johnson, a Walmart loss‑prevention employee, stole cash and merchandise. He pleaded guilty to one felony theft count and one misdemeanor theft count. The plea agreement:

• Committed Johnson to pay “all restitution within the term of [his] original sentence.”
• Provided that the District Attorney’s Office would “act in good faith to provide correct information establishing the amount of restitution within [ninety‑one] days of sentencing.”
• Included a stipulation for a deferred judgment stating restitution would be “determined within [ninety‑one] days.”

At the providency hearing, the court accepted the plea, found it voluntary, ordered the prosecutor to provide the amount within ninety‑one days, and afforded defense counsel sixty days to object. On the ninety‑first day, the prosecutor filed a proposed restitution order for $11,030.30; the court signed it the same day. Johnson then objected and requested a hearing. After continuances, he argued that Weeks required a final determination (including objections and any hearing) within ninety‑one days or else an express, pre‑deadline good‑cause finding. The trial court rejected this argument, treating the deadline as non‑jurisdictional and good cause as available retroactively, and it ultimately imposed the requested restitution amount.

A split court of appeals affirmed, reasoning that the district court’s scheduling necessarily contemplated a hearing outside the ninety‑one‑day period, which sufficed as a timely good‑cause extension. One judge concurred on the ground that Johnson’s assent in his plea mooted the timing dispute; another dissented, believing the order violated Weeks and that the amount was available at sentencing.

Analysis

Precedents Cited and Their Influence

• People v. Weeks, 2021 CO 75, 498 P.3d 142
  • Weeks held that a court may extend the ninety‑one‑day deadline for a final restitution determination only upon an express good‑cause finding made before the deadline expires. The Johnson Court cites Weeks for that rule but resolves the case on waiver grounds, distinguishing Weeks because the defense there timely objected and did not waive statutory rights.
• Babcock v. People, 2025 CO 26, 569 P.3d 850
  • A companion decision holding the ninety‑one‑day deadline in § 18‑1.3‑603(1)(b) is not jurisdictional. Johnson relies on Babcock’s analysis to extend the non‑jurisdictional, waivable reading to § 18‑1.3‑603(2)(a) as well.
• Finney v. People, 2014 CO 38, 325 P.3d 1044; People v. Rediger, 2018 CO 32, 416 P.3d 893; Richardson v. People, 2020 CO 46, 481 P.3d 1; Forgette v. People, 2023 CO 4, 524 P.3d 1
  • Together, these cases supply the waiver framework: statutory rights (unlike fundamental constitutional rights) may be waived voluntarily without a knowing‑and‑intelligent requirement; counsel may waive a client’s statutory rights; waiver can be explicit or implied by conduct inconsistent with later assertions; and waiver extinguishes error and appellate review. The Court applies this framework to find both explicit and implicit waiver.
• Statutory interpretation authorities
  • Cowen v. People, 2018 CO 96, 431 P.3d 215; Archuleta v. Roane, 2024 CO 74, 560 P.3d 399; Denver Post Corp. v. Ritter, 255 P.3d 1083 (Colo. 2011); Dept. of Nat. Res. v. 5 Star Feedlot, Inc., 2021 CO 27, 486 P.3d 250; Garcia v. People, 2023 CO 41, 530 P.3d 1200; Pearson v. Dist. Ct., 924 P.2d 512 (Colo. 1996); City & Cnty. of Denver Sch. Dist. No. 1 v. Denver Classroom Teachers Ass’n, 2017 CO 30, 407 P.3d 1220.
  • From these, the Court draws canons to determine that § 18‑1.3‑603(2)(a) is directory: the statute lacks jurisdictional language and consequences for noncompliance; it uses affirmative verbs (“shall,” “may”) rather than prohibitions; and the broader restitution scheme mandates liberal construction to expedite full restitution for victims (§ 18‑1.3‑601(1)(g)(I), (2)).
• Invited error doctrine
  • Justice Gabriel’s concurrence references Rediger’s articulation of invited error, concluding that Johnson’s post‑order objection and request for a hearing beyond the deadline either invited any later timing error or themselves constituted good cause to extend the deadline.

Legal Reasoning

The Court’s analysis unfolds in two steps: (1) characterize the statute’s timing directives as directory (non‑jurisdictional) and thus waivable; and (2) apply waiver doctrine to Johnson’s conduct.

1. Directory, not jurisdictional
   • Text and structure: § 18‑1.3‑603(2)(a) does not say its deadlines are jurisdictional, and it prescribes no consequence for missing them. Its affirmative phrasing (“shall” / “may”), without negative prohibitions or sanctions, points to a directory construction.
   • Purpose and policy: The restitution scheme is to be liberally construed to ensure full, expeditious restitution to victims (§ 18‑1.3‑601(1)(g)(I), (2)). Treating the deadlines as jurisdictional would risk eliminating restitution for procedural missteps, undermining the statutory purpose.
   • Harmony with Babcock: This analysis mirrors Babcock’s conclusion about § 18‑1.3‑603(1)(b). Johnson extends that reasoning to § 18‑1.3‑603(2)(a), which addresses the prosecution’s duty to provide information at sentencing or within ninety‑one days.
   • Relationship with Weeks: Weeks remains good law on the requirement of an express good‑cause finding to extend the ninety‑one‑day deadline. The key refinement is that because the deadlines are directory, they can be waived; where waiver occurs, a lack of a timely good‑cause finding need not be dispositive.
2. Waiver on this record
   • Explicit waiver: Johnson’s plea agreement and deferred judgment stipulation expressly accepted a ninety‑one‑day window for the prosecution to provide restitution information and committed him to pay restitution as a sentence condition. He told the court he understood and agreed, and the court found the plea voluntary. This is explicit relinquishment of any right to demand that restitution be set at sentencing or within a shorter interval.
   • Implicit waiver: At the providency hearing, the court ordered a schedule that necessarily pushed any defense objection and hearing beyond the ninety‑one‑day mark (ninety‑one days for the prosecution to calculate; sixty days for defense objections thereafter). Defense counsel did not object to this schedule or later to a thirty‑day objection window in the order. To the contrary, counsel requested a hearing outside the ninety‑one‑day period and argued that the circumstances qualified as good cause. These actions are inconsistent with later claims that the court lacked authority after ninety‑one days, thereby effecting implied waiver.
   • Contrast with Weeks: In Weeks, defense counsel timely objected and sought to limit restitution to the interim amount, thereby preserving the timing issue; there was no waiver. Johnson’s conduct is materially different.

Impact and Practical Consequences

Johnson significantly clarifies and stabilizes restitution practice in Colorado:

• Doctrinal clarity
  • Both key timing provisions—§ 18‑1.3‑603(1)(b) and (2)(a)—are directory and waivable. This reduces the risk that victims will be deprived of restitution based on technical timing errors, while preserving Weeks’ requirement for a timely good‑cause finding when no waiver occurs.
  • Waiver of statutory timing rights does not require a knowing and intelligent colloquy; voluntary acceptance by the defendant (or counsel on the defendant’s behalf) suffices. Counsel’s actions can waive a client’s statutory rights.
• Plea bargaining and sentencing practice
  • Plea agreements that expressly provide time for the prosecution to calculate restitution—and stipulate that restitution will be determined after sentencing—will likely be treated as explicit waivers of the statutory demand to set restitution at sentencing when amounts are “available.”
  • Defense counsel should object contemporaneously to schedules that contemplate objections or hearings beyond ninety‑one days if preservation is desired. Silence or acquiescence may be treated as implied waiver.
  • Courts should continue to strive to enter a “final determination” within ninety‑one days or, if not feasible, to make an express, pre‑deadline finding of good cause under Weeks when the parties have not waived timing protections.
• Litigation strategy
  • Prosecutors: Although deadlines are directory, best practice is to file restitution requests—and propose orders—within ninety‑one days. If more time is needed, seek a timely good‑cause finding. Where a defendant agrees to extended schedules or requests post‑deadline hearings, be prepared to argue waiver or invited error.
  • Defense counsel: If disputing timeliness, object at sentencing to any schedule that runs beyond ninety‑one days; avoid requesting continuances or agreeing to post‑deadline hearings unless you intend to waive the timing objection or can secure a timely good‑cause finding. Consider narrowing issues to what is “available” at sentencing and preserve that argument distinctly.
• Open questions and companion developments
  • Johnson does not define the statutory term “available” in § 18‑1.3‑603(2)(a); that issue remains subject to further development (it was raised in the certiorari grant but became moot due to waiver here).
  • The opinion does not decide whether a defendant must be given an opportunity to object and receive a hearing within the ninety‑one‑day period for the court’s “final determination” to be timely; the concurrence suggests that an order entered within ninety‑one days is timely, and any later reconsideration may be invited or supported by good cause.

Complex Concepts Simplified

• Jurisdictional vs. directory deadlines
  • Jurisdictional: Limits the court’s power; missing the deadline means the court cannot act, and the defect cannot be waived.
  • Directory: Provides guidance or a preferred timeline; missing the deadline does not strip authority. Parties can waive directory timing protections.
• Waiver, forfeiture, and invited error
  • Waiver: Voluntary relinquishment of a right. For statutory rights, waiver can be explicit (in writing or on the record) or implied by conduct inconsistent with later asserting the right. Waiver extinguishes error and forecloses appellate review.
  • Forfeiture: Failure to timely assert a right, often reviewed for plain error; distinct from intentional waiver.
  • Invited error: A party cannot complain on appeal about an error that party induced, requested, or injected into the case.
• Good cause under § 18‑1.3‑603(1)(b)
  • Weeks requires an express finding of good cause to extend the ninety‑one‑day period, and that finding must be made before the deadline expires—unless the timing protections have been validly waived.
• “Final determination” of restitution
  • Refers to the trial court’s binding order setting the restitution amount. Johnson does not decide whether objections and hearings must occur within the ninety‑one‑day period; the concurrence views a same‑day order within ninety‑one days as timely even if objections and hearings occur later.
• Providency hearing and deferred judgment
  • A providency hearing is the plea colloquy at which the court ensures the plea is knowing, voluntary, and supported by a factual basis. A deferred judgment is a disposition in which sentencing is postponed subject to conditions (including restitution); successful completion can result in dismissal.

The Concurrence in the Judgment

Justice Gabriel, joined by Chief Justice Márquez, agrees with the outcome but not the majority’s implied waiver analysis. He would adhere to the traditional formulation that waiver is the “intentional relinquishment of a known right,” and thus would not find implied waiver merely from assenting to a post‑deadline hearing. Nonetheless, he concludes:

• The district court entered a restitution order within ninety‑one days, satisfying the statute.
• Any error in reconsidering that order after ninety‑one days was invited by Johnson’s objection and request for a hearing.
• Alternatively, Johnson’s request for a hearing beyond the deadline established good cause to extend the deadline.

This separate writing underscores two practical paths to affirmance in similar cases: invited error and the defendant’s own request as good cause.

Key Takeaways

• New rule clarified: The deadlines in § 18‑1.3‑603(2)(a) (prosecution’s submission duty) are, like § 18‑1.3‑603(1)(b)’s ninety‑one‑day deadline, directory and waivable. The Court’s rationale is grounded in statutory text, structure, and the restitution scheme’s purposes.
• Waiver matters: Defendants can waive timing protections expressly in plea agreements and implicitly by conduct (e.g., acquiescing to schedules that exceed ninety‑one days or requesting post‑deadline hearings). Counsel’s actions can effect waiver of statutory rights without a knowing‑and‑intelligent colloquy.
• Weeks remains intact: Absent waiver, courts must make express, pre‑deadline good‑cause findings to extend the ninety‑one‑day period.
• Practical compliance: Prosecutors and courts should continue to target a final order within ninety‑one days or secure a timely good‑cause finding. Defense lawyers seeking to preserve timing objections must object early and avoid conduct that could be read as waiver or invited error.
• Open issues: The decision leaves for another day the precise meaning of “available” at sentencing and whether due process requires an opportunity to object and be heard within the ninety‑one‑day period for an order to qualify as a “final determination.”

Conclusion

Johnson v. People cements a coherent framework for restitution timing in Colorado: the statutory deadlines are directory, not jurisdictional; they serve important purposes but do not strip courts of authority upon noncompliance; and they are subject to waiver, whether explicit in plea agreements or implicit through conduct. By affirming on waiver grounds and extending Babcock’s reasoning to § 18‑1.3‑603(2)(a), the Court harmonizes the restitution statute’s text with its victim‑centric purposes while preserving Weeks’ insistence on timely good‑cause findings in unwaived cases. The opinion gives clear guidance to judges, prosecutors, and defense counsel alike: if timing protections matter, they must be asserted and preserved early; if parties agree to a different schedule, courts may rely on that agreement without fear that their authority evaporates on day ninety‑two.