Cases | People v. Lowe, 60 P.3d 753 (Colo. Ct. App. 2002) | 2018
Defendant pled guilty in 1992 to second degree sexual assault and was ordered to pay court costs, a victim compensation cost, and a victim assistance surcharge. According to the mittimus, restitution was “reserved”. In 2000, the legislature enacted the Restitution Act (“the Act”), which included new provisions for collection of unpaid restitution. The Department of Corrections (DOC) began to withhold twenty percent of the deposits into defendant’s inmate account to apply towards payment of the costs. The trial court denied defendant’s motion for an order to show cause. On appeal, defendant claimed that: (1) because the sentencing court reserved any ruling on restitution, the Act did not permit DOC to withhold money from his account; (2) the Act applies prospectively only and thus is inapplicable to the costs and fees defendant was ordered to pay in 1992; (3) application of the Act violated constitutional prohibitions against ex post facto laws; and (4) application of the Act breached defendant’s plea agreement. The appellate court held that: (1) DOC was authorized under the Act and under Colo. Rev. Stat. § 16-11-101.6(5) to withhold money from defendant's account to pay the sums. Under the plain language of statutory provisions, any sums a defendant is ordered to pay as a victim compensation cost or victim assistance surcharge are within the purview of the Act, even if they are identified separately from “restitution” on the defendant’s mittimus; (2) the Act applied because defendant’s payment obligation under the existing order was delinquent as of the Act’s effective date; (3) because the Act simply facilitated collection from defendant of the sums he was ordered to pay at the time of sentencing, its application to defendant did not constitute an ex post facto violation; and (4) the terms of defendant's plea agreement were not part of the record on appeal. Absent record support for defendant’s contention, the court presumed that the agreement did not include any provision to waive fees or costs that, as noted, could not be waived in any event under the applicable statutes.
(This case cites former Colo. Rev. Stat. § 16-18.5-102.)