Tennyson v. People: Timeliness Challenges to Restitution Amounts Set Under § 18-1.3-603(1)(b) Are “Illegal Manner” Claims Subject to Crim. P. 35(b)’s Deadline

Tennyson v. People: Timeliness Challenges to Restitution Amounts Set Under § 18-1.3-603(1)(b) Are “Illegal Manner” Claims Subject to Crim. P. 35(b)’s Deadline

Introduction

In 2025 CO 31 (569 P.3d 815), the Colorado Supreme Court clarified how postconviction challenges to the timing of restitution orders are categorized and time-limited under Colorado law. The case arises from a 2008 sentencing in which the district court found Audrey Lee Tennyson liable for restitution at sentencing and deferred the determination of the amount pursuant to section 18-1.3-603(1)(b), later entering a dollar figure outside the statutory deadline without a timely, express good-cause finding. A decade later, Tennyson filed a Crim. P. 35(a) motion contending that the late amount order rendered his “sentence” illegal and that the only proper remedy was to vacate the restitution.

The core question before the Court was narrow but consequential: Is a postconviction challenge to the timeliness of a post-sentencing order determining the amount of restitution (after a subsection (1)(b) liability finding at sentencing) an “illegal sentence” claim that may be raised “at any time” under Crim. P. 35(a), or an “illegal manner” claim that must be filed within the time provided for sentence reduction under Crim. P. 35(b) (120/126 days)?

In a majority opinion by Justice Samour, the Court held that such a challenge is an “illegal manner” claim because, under Sanoff v. People, the amount of restitution set after a subsection (1)(b) liability order is severed from the sentence and judgment of conviction. Consequently, Tennyson’s challenge, filed years after sentencing, was time-barred. Justice Gabriel dissented, warning that the majority’s approach undermines the restitution statute’s deadlines recognized in People v. Weeks and closes the courthouse door in many cases where courts and prosecutors miss statutory time limits.

Summary of the Opinion

  • Every criminal sentence must include one of four statutorily enumerated restitution orders listed in § 18-1.3-603(1)(a)–(d). A sentence omitting all four is not authorized by law and may be corrected “at any time.”
  • When a court issues a § 18-1.3-603(1)(b) order at sentencing (finding the defendant liable for restitution and deferring only the amount), the later order setting the amount is not part of the sentence or judgment of conviction (Sanoff). Therefore, a Crim. P. 35(a) challenge to the timeliness of that later amount order is an “illegal manner” claim subject to Crim. P. 35(b)’s 120/126-day deadline, not an “illegal sentence” claim.
  • Applying this rule, Tennyson’s claim was time-barred because he filed it approximately ten years after sentencing.
  • The Court reaffirmed Weeks: if a court sets the restitution amount beyond § 18-1.3-603(1)(b)’s deadline without a timely, express good-cause finding, the court lacks statutory authority to do so and the remedy on direct appeal of that amount order is vacatur. But Weeks did not recast such violations as jurisdictional.
  • Clarification: When a court issues a § 18-1.3-603(1)(a) order at sentencing (fixing the restitution amount then), the amount is a component of the sentence; Crim. P. 35(a) challenges to the amount in that context are “illegal sentence” claims.
  • The subsection (1)(b) deadline is not jurisdictional (see companion case Babcock v. People, 2025 CO 26).

Analysis

Precedents Cited and Their Influence

  • Sanoff v. People, 187 P.3d 576 (Colo. 2008):
    • After the 2000 statutory revisions, the Court held that when a sentencing court enters a § 18-1.3-603(1)(b) order (finding restitution liability at sentencing but deferring the amount), the later determination of amount is severed from the “sentence” and the “judgment of conviction.”
    • Practical consequence: The judgment of conviction is final and appealable without waiting for a later restitution amount, and the later amount order is itself separately appealable.
    • In Tennyson, the majority used Sanoff’s severance principle to classify a timeliness challenge to a post-sentencing amount order as an “illegal manner” claim, not an “illegal sentence” claim.
  • People v. Baker, 2019 CO 97M, 452 P.3d 759:
    • Held that presentence confinement credit (PSCC) is not a component of a sentence; errors there typically sound in clerical correction (Crim. P. 36) or as an “illegal manner” claim under Crim. P. 35(a) subject to 35(b) timelines.
    • Analogically supports the majority’s distinction between what is “part of” a sentence and what concerns the manner in which the sentence is imposed. The Court used Baker to reinforce that challenges to ancillary determinations (like a “1(b)” amount order) are “illegal manner” claims.
  • People v. Weeks, 2021 CO 75, 498 P.3d 142:
    • Interpreted § 18-1.3-603 to impose two deadlines: the prosecution’s deadline to submit restitution information (§ 18-1.3-603(2)), and the court’s deadline to determine the amount (§ 18-1.3-603(1)(b)). Extensions require timely, express findings (extenuating circumstances/good cause).
    • Held that after the § 18-1.3-603(1)(b) deadline lapses (without a timely good-cause finding), the court lacks statutory authority to set the amount; remedy on direct appeal of the amount order is vacatur.
    • Tennyson preserves Weeks’ remedial framework on direct appeal but cabins postconviction relief by categorizing the timeliness challenge as “illegal manner,” subject to 35(b) limits.
  • Meza v. People, 2018 CO 23, 415 P.3d 303 and People v. Belibi, 2018 CO 24, 415 P.3d 301:
    • Reinforced the statutory structure: if the court does not reserve the amount via § 18-1.3-603(1)(b) or (1)(c), it lacks power to later increase or set a new amount beyond what was fixed at sentencing under § 18-1.3-603(1)(a).
    • Support Tennyson’s delineation of when and how courts have statutory authority regarding post-sentencing restitution amounts.
  • 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); Hunsaker v. People, 2021 CO 83, 500 P.3d 1110; People v. White, 179 P.3d 58 (Colo. App. 2007):
    • These cases define and exemplify “illegal sentences” as those not authorized by law or inconsistent with statutory requirements (e.g., imposing an impermissible parole term, exceeding statutory maximums, or disregarding statutory concurrency rules).
    • Tennyson uses this body of law to clarify the boundary: missing any § 18-1.3-603(1) restitution order at sentencing renders the sentence illegal. But once a valid § 18-1.3-603(1)(b) order enters, later timing violations in setting the amount are procedural—i.e., “illegal manner.”
  • People v. Wenzinger, 155 P.3d 415 (Colo. App. 2006); People v. Bowerman, 258 P.3d 314 (Colo. App. 2010); People v. Sisson, 179 P.3d 193 (Colo. App. 2007):
    • Further articulate the “illegal manner” concept: failures in statutory procedure or due process in the sentencing process.
  • Babcock v. People, 2025 CO 26 (companion case):
    • Confirms that § 18-1.3-603(1)(b)’s deadline is not jurisdictional. Tennyson relies on that conclusion to reject the “jurisdiction” framing of late restitution-amount orders.

Legal Reasoning and Application

The majority’s reasoning proceeds in two steps. First, it delineates what counts as part of a “sentence” and what does not. Under § 18-1.3-603(1), a sentencing court must include one of four restitution orders:

  • § 18-1.3-603(1)(a): a specific amount of restitution (amount fixed at sentencing);
  • § 18-1.3-603(1)(b): liability for restitution with the amount to be determined within the statutory window (90/91 days, extendable only with a timely, express good-cause finding);
  • § 18-1.3-603(1)(c): future treatment costs for a victim;
  • § 18-1.3-603(1)(d): a specific finding that no victim suffered a pecuniary loss.

A sentencing court that omits all four enters a sentence not authorized by law: an “illegal sentence” correctable at any time under Crim. P. 35(a).

Second, relying on Sanoff, the Court holds that when the court enters a valid § 18-1.3-603(1)(b) order at sentencing (finding liability but deferring only the amount), the later order setting the amount is not part of the sentence or judgment of conviction. Therefore, a Crim. P. 35(a) challenge to the timeliness of that later amount order is a challenge to the manner in which the sentence was imposed, not to the legality of the sentence itself. Such “illegal manner” claims are subject to Crim. P. 35(b)’s 120/126-day deadline (from the imposition of sentence if no direct appeal is taken, or from the remittitur/appellate disposition if there is a direct appeal).

Applying this framework, the Court found Tennyson time-barred. The district court made a § 18-1.3-603(1)(b) liability finding at sentencing; the later amount order was entered beyond the 90-day window without a timely good-cause finding; however, because the amount determination is severed from the sentence, the claimed error sounds in the manner of imposing the sentence. Tennyson did not file an appeal from the separate amount order and waited approximately ten years to bring a Crim. P. 35(a) challenge. That is outside the 120-day window then in effect for “illegal manner” claims.

The Court also clarified several adjacent points:

  • Weeks remains intact for direct appeals: if a trial court misses the § 18-1.3-603(1)(b) deadline without a timely, express good-cause finding, it lacks statutory authority to set the amount, and the remedy on direct appeal of that amount order is vacatur. The Court emphasized that Weeks spoke of “authority,” not “jurisdiction.”
  • Not jurisdictional: Per Babcock, the § 18-1.3-603(1)(b) deadline is not jurisdictional; it is a statutory-authorization limit.
  • Important distinction for § 18-1.3-603(1)(a) orders: If the court fixes a specific restitution amount at sentencing under § 18-1.3-603(1)(a), the amount is part of the sentence. A Crim. P. 35(a) challenge to that amount is an “illegal sentence” claim that may be raised at any time.
  • Practice reminder: An order that defers both liability and amount (“we’ll decide later whether restitution is owed and for how much”) is not one of the four statutorily authorized options and renders the sentence illegal, correctable at any time.

The Dissent’s Critique

Justice Gabriel dissented on three principal grounds:

  • The amount is part of the sentence: He reads the statute and longstanding appellate practice to mean that restitution—including the amount—is a component of a criminal sentence whether set at sentencing or later. Thus, a late amount order conflicts with the statute and yields an “illegal sentence” claim (correctable at any time), not merely an “illegal manner” claim.
  • Sanoff is limited to finality: In his view, Sanoff’s severance language concerned only finality for appellate purposes (allowing the sentencing judgment to be appealed without waiting for the later amount), not the classification of postconviction claims. Using Sanoff to deprive defendants of a remedy is, he argues, a misuse of its rationale.
  • Practical absurdity and erosion of Weeks: By classifying these challenges as “illegal manner” claims, many defendants will be time-barred even before the amount is set (because the Crim. P. 35(b) clock runs from sentencing if no direct appeal is taken). He warns this “closes the courthouse door” for many and “dramatically undercuts” Weeks’ enforcement of statutory deadlines.

The majority’s responses are twofold: defendants can always directly appeal the separate judgment that sets the amount of restitution (whenever entered), and when no direct appeal is taken, Rule 35(b)’s time limit is the policy choice built into the illegal-manner framework. The Court also notes that this consequence is largely confined to the uncommon case where no direct appeal is filed.

Impact

Tennyson meaningfully reshapes restitution practice at the postconviction stage while preserving Weeks on direct appeal.

  • For defendants:
    • If the court issued a § 18-1.3-603(1)(b) liability order at sentencing, and later set the amount late and without a timely good-cause finding, your cleanest route is a direct appeal of the separate amount order, where vacatur is available under Weeks.
    • If you did not appeal, any postconviction challenge to the timing of the later amount order is an illegal manner claim and must be filed within Crim. P. 35(b)’s window (120/126 days from sentencing absent an appeal). Outside that window, it is time-barred.
    • If the sentencing court failed to enter any of the four restitution orders at sentencing, that sentence is not authorized by law; a Crim. P. 35(a) “illegal sentence” claim remains available at any time.
    • If the court entered a § 18-1.3-603(1)(a) order setting the amount at sentencing and you believe the amount is unlawful, your challenge is an illegal sentence claim under Crim. P. 35(a), correctable at any time.
  • For prosecutors:
    • Weeks’ deadlines remain binding: submit restitution information by § 18-1.3-603(2)’s deadline (or seek a timely extension for “extenuating circumstances”), and secure a timely, express good-cause finding if the court’s § 18-1.3-603(1)(b) deadline must be extended. Untimely amount orders are vulnerable to vacatur on direct appeal.
    • Do not request a “blanket reservation” of restitution (deferring both liability and amount). Such an order is not authorized by § 18-1.3-603(1) and renders the sentence illegal.
  • For trial courts:
    • At sentencing, enter one of the four enumerated restitution orders. A generalized “reserve restitution” that postpones whether restitution will be owed is unauthorized.
    • When entering a § 18-1.3-603(1)(b) order, calendar the 91-day deadline and make timely, express good-cause findings on the record if an extension is needed.
    • Recognize that the later amount order is a separate final judgment, independently appealable, and that untimely orders risk vacatur on direct appeal.
  • For victims:
    • Weeks continues to protect the statutory timelines with a strong remedy on direct appeal; Tennyson promotes finality by limiting late, collateral attacks where no appeal was taken, potentially reducing prolonged uncertainty many years after sentencing.

Complex Concepts Simplified

  • “Illegal sentence” vs. “illegal manner” (Crim. P. 35(a)):
    • Illegal sentence: A sentence not authorized by law (e.g., contradicts statute, exceeds maximum, omits required components) or imposed without jurisdiction. It can be corrected “at any time.”
    • Illegal manner: The sentencing process ignored required procedure (e.g., statutory deadlines, due process). It must be corrected within Crim. P. 35(b)’s 120/126-day timeframe.
  • Restitution orders at sentencing (§ 18-1.3-603(1)):
    • (1)(a) set a specific amount at sentencing; (1)(b) find liability now, set amount later within deadline; (1)(c) set future treatment costs; (1)(d) find no pecuniary loss.
    • Omitting all four is an illegal sentence.
  • Sanoff’s “severance” concept:
    • When the court uses (1)(b), the later order setting the amount is severed from the sentence and judgment of conviction. It is its own final judgment, appealable when entered.
  • Weeks’ deadlines:
    • Prosecution deadline (§ 18-1.3-603(2)): file restitution information by sentencing or within 91 days if not available; extension needs timely, express finding of “extenuating circumstances.”
    • Court deadline (§ 18-1.3-603(1)(b)): determine the amount within 91 days; extension needs a timely, express “good cause” finding.
    • Missed court deadline without a timely finding: on direct appeal of the amount order, remedy is vacatur.
  • “Authority” vs. “jurisdiction”:
    • “Authority” here means the court’s statutory power to act. Missing § 18-1.3-603(1)(b)’s deadline strips statutory authority to set the amount, but does not divest subject matter jurisdiction.
  • Crim. P. 35 timelines:
    • Illegal sentence: correctable “at any time.”
    • Illegal manner: correctable only within 120/126 days (depending on the time period) of sentencing if no direct appeal was filed, or within 120/126 days after the relevant appellate disposition if an appeal was filed.
  • Direct appeal vs. postconviction:
    • Because a § 18-1.3-603(1)(b) amount order is a separate final judgment, you can appeal it directly, even long after sentencing. By contrast, a postconviction “illegal manner” claim challenging its timeliness is bound by 35(b)’s short deadlines.
  • Vacatur and the mittimus:
    • Vacatur nullifies an untimely amount order on direct appeal. If vacated, the mittimus should reflect that no restitution is due (§ 18-1.3-603(1)(d)), as Weeks contemplates.

Practical Takeaways and Checkpoints

  • At sentencing:
    • Confirm the court enters one of § 18-1.3-603(1)(a)–(d). An unauthorized “reserve everything” order is an illegal sentence.
    • If proceeding under § 18-1.3-603(1)(b), calendar the 91-day determination deadline and ensure any extension includes a timely, express good-cause finding.
  • After a § 18-1.3-603(1)(b) order:
    • If the amount is set late without a timely good-cause finding, file a direct appeal of the amount order; seek vacatur under Weeks.
    • If no appeal is taken, any Crim. P. 35(a) challenge to timeliness is an “illegal manner” claim that must be filed within Crim. P. 35(b)’s deadline from sentencing (if there was no appeal).
  • If the court set the amount at sentencing under § 18-1.3-603(1)(a):
    • Challenges to the amount can be brought as “illegal sentence” claims under Crim. P. 35(a) at any time.

Conclusion

Tennyson v. People draws a bright doctrinal line in Colorado restitution jurisprudence. It reaffirms that every sentence must include one of the four statutorily enumerated restitution orders, and it clarifies that a bare deferral of “restitution” in toto is not authorized. Most significantly, the Court holds that when a sentencing court proceeds under § 18-1.3-603(1)(b), the later order setting the amount of restitution is severed from the sentence and judgment of conviction. As a result, a postconviction challenge to the timeliness of that order is an “illegal manner” claim subject to Crim. P. 35(b)’s short deadlines, not an “illegal sentence” claim.

Weeks remains the controlling authority on direct appeal: an untimely amount order entered without a timely, express good-cause finding must be vacated. Tennyson complements Weeks by channeling most timing disputes into direct appeals of the separate amount judgment or, if no appeal is taken, into promptly filed Rule 35(a) “illegal manner” motions within the 120/126-day window.

The dissent cautions that this framework may leave many defendants without a postconviction remedy and dilute the force of statutory deadlines. The majority responds that direct appeal of the separate amount judgment remains an available and effective remedy; only untimely collateral attacks are restricted. Going forward, counsel, prosecutors, and trial courts must rigorously observe the statutory restitution scheme—enter a proper order at sentencing, meet the 91-day deadlines, make timely, express findings for any extensions, and select the proper appellate or postconviction vehicle—lest restitution awards be vacated on direct review or rendered unchallengeable in later collateral proceedings.

Case Details

Year: 2025
Court: Colorado Supreme Court

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