People v. Smith, 754 P.2d 1168 (Colo. 1988)

Cases | People v. Smith, 754 P.2d 1168 (Colo. 1988) | 2018

Defendant was convicted of criminal mischief. The State requested that the trial court order restitution to the victim and his insurer for damage to the victim’s car. The trial court declined to impose restitution because the damage was the subject of a civil complaint and counterclaim between the victim and defendant. The State claimed that the trial court erred in ordering defendant to pay restitution. The supreme court found that the mere pendency of a civil suit between a criminal and victim cannot act to vitiate the trial court's duty to order restitution to the victim. Permitting a court to decline to impose restitution as a condition of probation in light of a collateral civil suit would place victims in the unfair position of having to decide whether to postpone a civil suit solely to ensure that they do not lose their statutorily granted right to restitution. Because the trial court did not order restitution as a condition of probation, it did not determine the actual pecuniary losses suffered by the victim and his insurer. The case was therefore remanded for further proceedings so the trial court could determine the amount of restitution in light of the factors set out in Colo. Rev. Stat. § 16-11-204.5(1) (repealed).

(This case cites former Colo. Rev. Stat. §§ 16-11-204 and 16-11-204.5.)