Restitution’s Ninety-One-Day Deadline Under § 18-1.3-603(1)(b) Is Directory and Waivable; Implied Waiver by Defense Scheduling Beyond the Deadline

Case: Babcock v. People, 2025 CO 26, No. 23SC583 (Colo. May 27, 2025)

Court: Supreme Court of Colorado, En Banc

Author: Justice Hood (majority); Justice Gabriel, joined by Chief Justice Márquez, concurring in the judgment

Introduction

In Babcock v. People, the Colorado Supreme Court resolved a recurring question about the restitution statute’s timing rules: Is the ninety-one-day deadline for courts to determine the amount of restitution jurisdictional, such that a late order is void, or directory and therefore waivable? The Court held that the deadline in section 18-1.3-603(1)(b), C.R.S. (2024), is not jurisdictional and can be waived, including by implication when a defendant asks the court to set a restitution hearing outside the ninety-one-day period.

The case arises from a deferred judgment on a plea to child abuse resulting in serious bodily injury. At sentencing, the trial court reserved restitution for ninety-one days. The prosecution submitted a specific restitution request within eighty-two days. Defense counsel objected on day ninety and requested a hearing in June (ultimately held in August 2020 due to the COVID-19 pandemic). The court set restitution at the amount the prosecution requested. On appeal, the defendant argued that under People v. Weeks, 2021 CO 75, the trial court lacked authority to enter a restitution order after the ninety-one-day deadline absent an express, timely finding of good cause. The court of appeals affirmed, concluding the deadline is not jurisdictional and the defendant waived the timing objection by requesting an out-of-window hearing. The Supreme Court granted certiorari to clarify the statute’s character and the availability of waiver.

This decision is one of a cluster of restitution cases issued the same day, including People v. Roberson, 2025 CO 30, Tennyson v. People, 2025 CO 31, and Snow v. People, 2025 CO 32. Collectively, they refine the contours of restitution procedure post-Weeks.

Summary of the Opinion

The Court affirms the court of appeals and holds:

Weeks is distinguishable. Weeks did not involve waiver; there, the court set restitution nearly a year late without any timely good-cause finding, and neither party raised waiver. In Babcock, defense counsel affirmatively sought a hearing beyond the ninety-one-day window, never asserting the deadline as a constraint.
The ninety-one-day deadline in § 18-1.3-603(1)(b) is not jurisdictional. The statute contains no explicit jurisdictional language; it employs affirmative rather than prohibitory terms; it prescribes no consequence for noncompliance; and a jurisdictional reading would undermine the statute’s remedial, victim-centered purposes.
The deadline is waivable, and the waiver may be implied. Defense counsel’s voluntary request to set the hearing outside the statutory window manifested an intent to relinquish the statutory right to have restitution determined within ninety-one days; thus, any error was extinguished.

Justice Gabriel, joined by Chief Justice Márquez, concurred in the judgment but rejected the majority’s waiver analysis. He would uphold the order because the record showed “good cause” to extend the deadline under § 18-1.3-603(1)(b): the prosecution timely moved for restitution, and the defendant requested a hearing beyond the deadline, which the court honored. He would also clarify Weeks to require that good cause be shown on the record before the deadline expires, without demanding an express finding by the court, and he criticized the majority’s dilution of waiver principles announced in People v. Rediger, 2018 CO 32.

Analysis

Statutory Framework

Colorado’s restitution regime is set out in §§ 18-1.3-601 to -603. Section 18-1.3-603(1) mandates that every felony “order of conviction” include consideration of restitution and directs the court to enter one of four kinds of orders:

(a) an order setting a specific amount;
(b) an order establishing liability with the specific amount to be determined within ninety-one days of the order of conviction, unless good cause is shown to extend;
(c) an order for costs of specific future treatment; or
(d) a finding of no pecuniary loss.

Section 18-1.3-603(2) regulates the prosecution’s timing to present restitution information: before the order of conviction or within ninety-one days if not then available, with an extension permitted for extenuating circumstances. Section 18-1.3-601 declares the Legislature’s purposes: full, expeditious restitution; effective, timely assessment, collection, and distribution; and liberal construction to ensure restitution is ordered and disbursed to victims and their families. Victims have a statutory right to restitution. § 24-4.1-302.5(1)(h), C.R.S. (2024).

The Weeks Baseline and What Babcock Changes

In Weeks, the Court clarified two independent clocks:

Prosecution’s submission deadline (§ 603(2)). The prosecution must present restitution information before conviction or within ninety-one days if the information is not then available; extensions require a finding of “extenuating circumstances.”
Court’s determination deadline (§ 603(1)(b)). If the court reserves amount, it must “determine” the amount within ninety-one days, extendable only for “good cause.”

Weeks required that extenuating-circumstances and good-cause extensions be expressly made on the record before the applicable deadline expires. Because the Weeks court set restitution nearly a year late without any timely good-cause finding, the Supreme Court held the court “lacked authority” to act and ordered the mittimus amended to reflect “no restitution is required.”

Babcock leaves the core Weeks architecture in place but adds two critical clarifications:

Nonjurisdictional character. The Court disavows any reading of Weeks as declaring the § 603(1)(b) deadline jurisdictional. “Authority” and “jurisdiction” are not the same, as elaborated in companion case Tennyson v. People, 2025 CO 31.
Waivability and implied waiver. Because the deadline is not jurisdictional, it is waivable. Defense counsel’s voluntary request for a hearing date beyond ninety-one days constituted an implied waiver of the statutory timing right.

Precedents and Authorities Cited

People v. Weeks, 2021 CO 75, 498 P.3d 142: Established the two-deadline structure and the requirement of timely, express findings for extensions; remedied untimely order with vacatur. Babcock distinguishes Weeks on waiver: the issue was neither raised nor decided in Weeks.
Tennyson v. People, 2025 CO 31: Cited for the distinction between “authority” and “jurisdiction,” underscoring that failure to comply with a statutory precondition does not necessarily defeat jurisdiction.
People v. Roberson, 2025 CO 30: Referenced for reasons why Weeks is distinguishable where a defendant invites or acquiesces in an out-of-window determination.
People v. Sprinkle, 2021 CO 60, 489 P.3d 1242: Supports the proposition that nonjurisdictional statutory rights may be waived.
Wood v. People, 255 P.3d 1136 (Colo. 2011): The General Assembly can limit jurisdiction, but such limits must be explicit.
Currier v. Sutherland, 218 P.3d 709 (Colo. 2009): Illustrates a truly jurisdictional deadline (under a statute that expressly withdraws jurisdiction after a set time).
Pearson v. Dist. Ct., 924 P.2d 512 (Colo. 1996), and DiMarco, 857 P.2d 1349 (Colo. App. 1993): Affirmative “shall” formulations tend to be directory; prohibitory phrasing (e.g., “in no event later than”) favors jurisdictional or mandatory readings.
Kemper v. Kemper, 344 P.2d 449 (Colo. 1959), and Denver Classroom Teachers Ass’n, 2017 CO 30: The absence of a prescribed consequence for noncompliance signals a directory provision.
People v. Rediger, 2018 CO 32, 416 P.3d 893: Waiver vs. forfeiture; waiver extinguishes error and appellate review. The concurrence argues the majority’s waiver analysis undercuts Rediger’s intentional-relief standard; the majority relies on separate lines recognizing that statutory rights can be waived without a “knowing and intelligent” showing.
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; and Moran v. Burbine, 475 U.S. 412 (1986): Support that counsel may waive a defendant’s statutory rights and that such a waiver need only be voluntary (not necessarily knowing and intelligent); implied waiver is recognized when conduct is inconsistent with retaining the right.

Legal Reasoning

1) Why the deadline is not jurisdictional.

No explicit jurisdictional language. Section 18-1.3-603(1)(b) does not mention jurisdiction, let alone state that courts lose it after ninety-one days, in contrast to statutes that expressly divest jurisdiction after a time limit (e.g., § 16-14-104(1)).
Affirmative phrasing. The deadline appears in a “shall be determined within” formulation, not a negative command like “in no event later than,” which Colorado decisions associate with jurisdictional or mandatory constraints.
No statutory consequence. The provision does not prescribe a penalty or consequence for missing the deadline, favoring a directory reading.
Statutory purpose and liberal construction. A jurisdictional reading could zero out victims’ restitution because of court delay, contrary to the Legislature’s directive to ensure full, expeditious restitution and to construe these statutes liberally to effect restitution.

2) Waiver applies, and it can be implied.

Waiver of statutory rights need only be voluntary. Unlike constitutional waivers, statutory waivers need not be knowing and intelligent; they must be voluntary and may be made by counsel.
Implied waiver tested by conduct. When defense counsel requested a hearing after the ninety-one-day window, that conduct manifested an intent inconsistent with insisting on the deadline. The Court treats this conduct as an implied waiver of the right to have the amount determined within ninety-one days.
Effect: error is extinguished. Because waiver extinguishes error, the appellate timeliness challenge fails.

3) Weeks remains good law, but its remedy exists alongside waiver.

Weeks still controls outcomes where (1) the court sets restitution after ninety-one days, (2) no timely good-cause finding is made, and (3) the defendant does not waive the deadline. Babcock clarifies that the missed deadline is a limit on the court’s statutory authority, not its jurisdiction, and that the right is waivable. If waiver occurs (as in Babcock), the late order stands.

The Concurrence’s Alternative Path: Good Cause, Not Waiver

Justice Gabriel would affirm on “good cause” grounds rather than waiver. In his view:

Good cause shown by defense request. When the prosecution timely moves for restitution, and the defendant requests a hearing outside the ninety-one-day window, the record itself shows good cause to extend the court’s determination deadline under § 603(1)(b).
Modify Weeks’ express-finding requirement. He would clarify that § 603(1)(b) requires good cause to be shown on the record before the deadline, but not necessarily through a formal, express finding by the court.
Protect Rediger’s waiver principles. He contends the majority dilutes Rediger by allowing waiver without a demonstration that the defendant intentionally relinquished a known right. He underscores the practical consequences of conflating inadvertence with waiver and the importance of preserving access to plain-error review for mere forfeitures.

Practical Guidance for Courts and Practitioners

For trial courts

Continue to treat Weeks’ timing architecture as controlling. Aim to determine restitution within ninety-one days or, before the deadline expires, make an explicit good-cause finding extending the court’s deadline.
Document the basis for any extension “on the record.” Even under the concurrence’s approach, a clear record supports appellate sustainability.
When defense proposes an out-of-window hearing, clarify on the record whether the court is finding good cause or accepting a waiver (preferably, both: secure an express waiver from counsel after advising of the deadline and/or enter a contemporaneous good-cause finding).

For prosecutors

File restitution requests within the § 603(2) window; if not possible, seek an extension based on “extenuating circumstances” before the deadline expires.
If the defense requests an out-of-window hearing, ask the court to (a) confirm that the defense request constitutes a waiver of § 603(1)(b) timing, and/or (b) make a contemporaneous “good cause” finding.
Frame the record around statutory purposes (§ 601) and victims’ rights to counter claims that a late determination should nullify restitution.

For defense counsel

Beware of implied waiver. A request for a hearing date beyond day ninety-one can be treated as waiving the timing right.
If a later date is needed, expressly preserve the statutory timing objection and request that the court make a pre-deadline “good cause” finding for any extension, noting that the request is not intended to waive the deadline.
Alternatively, request a hearing within the statutory window or request a brief written extension order entered before the deadline expires.

Impact

Babcock has several important effects on Colorado restitution practice:

Stability of restitution orders. By classifying the ninety-one-day deadline as directory and waivable rather than jurisdictional, Babcock reduces the risk of restitution orders being vacated solely due to late determinations caused by court scheduling—advancing the statute’s remedial aims.
Waiver gains prominence. Parties must assume that conduct inconsistent with insisting on the deadline—especially scheduling requests—can result in implied waiver. This shifts the litigation focus from automatic vacatur to record clarity about waiver or good cause.
Weeks recalibrated, not overruled. Weeks remains a potent defense tool where timeliness is preserved and no extensions are properly made, but Babcock narrows its reach by recognizing waiver.
Record-making best practices. Trial actors should formalize either a pre-deadline good-cause extension (majority-compliant and concurrence-aligned) or an express waiver to avoid satellite litigation around implied waiver or authority.
Doctrinal clarity on jurisdiction. Tennyson’s companion clarification that “authority” and “jurisdiction” differ, echoed here, helps avoid conflating directory timing with subject matter jurisdiction, curbing overuse of jurisdictional rhetoric in criminal procedure disputes.
Potential ripple effects on statutory waivers. The majority’s distinction between constitutional and statutory waivers—requiring only voluntariness for the latter—may influence waiver analyses beyond restitution, though courts will continue to assess voluntariness and implication contextually.

Complex Concepts Simplified

Jurisdiction vs. authority: Jurisdiction is a court’s power to hear a class of cases; “authority” refers to a court’s statutory power to take a particular action in a case. Missing a statutory step may deprive a court of authority but not jurisdiction.
Jurisdictional vs. directory deadline: A jurisdictional deadline, often expressly labeled, withdraws a court’s power after a time. A directory deadline tells courts what they should do but does not void action for being late, absent explicit consequences.
Waiver vs. forfeiture: Waiver is the intentional (or, for statutory rights, voluntary) relinquishment of a right and extinguishes error; forfeiture is merely failing to assert a right timely and preserves plain-error review. The majority applies a voluntariness standard for statutory waivers; the concurrence would adhere to Rediger’s intentional-relief framing across contexts.
Order of conviction: For restitution, this includes acceptance of a deferred judgment. § 18-1.3-602(2).
Good cause: A flexible standard allowing courts to extend deadlines; under the concurrence’s approach, a defense request for a later hearing date can itself show good cause on the record.

Conclusion

Babcock v. People answers a pivotal procedural question: the ninety-one-day deadline for courts to determine restitution under § 18-1.3-603(1)(b) is not jurisdictional. It is a directory requirement that can be waived, including by implication when defense counsel requests an out-of-window hearing. Weeks remains a powerful guardrail against late restitution determinations unsupported by timely extensions, but Babcock interposes waiver as a defense to Weeks-based challenges.

The concurrence offers an alternative route—good cause shown by the defense’s own scheduling request—and urges fidelity to Rediger’s waiver/forfeiture taxonomy. Whether future cases adopt the concurrence’s “shown on the record” formulation for good cause or continue to emphasize express pre-deadline findings, Babcock’s practical lesson is unmistakable: make the record. Courts should secure explicit waivers or enter pre-deadline good-cause findings; prosecutors should prompt the court to do so; and defense counsel should be intentional about preserving or relinquishing the timing right. In doing so, all participants will better harmonize statutory text, victims’ rights, and efficient administration of justice.