The People of the State of Colorado v. Franck Armand Belibi

Franck Belibi was charged with a number of felony and misdemeanor counts

following an incident in which he struck and killed a pedestrian with his car. He

ultimately entered into a plea arrangement, in which he agreed to plead guilty to one

count of attempt to influence a public servant and to pay $4,728 to the Victim’s

Compensation Fund to offset payments made for the decedent’s burial expenses. The

court accepted the defendant’s guilty plea and on April 19, 2013, sentenced him to five





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years of probation, with a condition of that probation being that he pay $4,728 in

restitution to the Victim’s Compensation Fund. The court did not enter any other

restitution order reserving the possibility that restitution might later be increased.

¶4 Fifty-eight days later, Safeco Insurance Company filed a claim for restitution,

asserting that it was obligated by an insurance contract to pay the decedent’s mother

$300,000 in death benefits and $5,000 in medical and funeral costs, and it was therefore

entitled to restitution as a victim of the crime. The district court ruled that Safeco was

an additional victim not known to the court at the time the restitution order was set,

and it increased the amount of restitution owed by the defendant by $302,022 to cover

Safeco’s losses. The defendant did not object to the increase at that time, but about five

months later he filed a motion for reconsideration pursuant to C.R.C.P. 60, asserting

that he had only recently received notice of the amended order. The district court

denied his motion on its merits, and he appealed to the court of appeals.

¶5 On appeal, the intermediate appellate court vacated the amended restitution

order and directed the district court to reenter its initial order for $4,728, reasoning that

the initial order was final where neither the mittimus finalizing the defendant’s

judgment of conviction nor the court’s written or oral pronouncements indicated

anything to the contrary. Because the statute includes a provision to the effect that the

amount of restitution may not be increased once the final amount of restitution has been

set, it found that the district court was barred from issuing its amended restitution

order.

¶6 The People petitioned for a writ of certiorari.





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II.

¶7 Orders for restitution in criminal prosecutions in this jurisdiction are governed

by statute and rule. See §§ 18-1.3-601 to –603, C.R.S. (2017); Crim. P. 32. As we

described more fully in Meza v. People, 2018 CO 23, ___ P.3d ___, also reported today

by this court, the current statutory scheme permits a criminal court, under certain

circumstances, to order a defendant obligated to pay restitution and yet order that the

specific amount of restitution be set within ninety-one days, or to order the defendant to

pay restitution covering the cost of specific future treatment of any victim, in addition

to or in place of ordering a specific amount of restitution at sentencing. See

§ 18-1.3-603(1)(b), (c); see also Sanoff v. People, 187 P.3d 576, 577–78 (Colo. 2008)

(describing the pre-2000 requirement to order an amount of restitution and place it on

the mittimus). The current statutory scheme also permits the criminal court to order an

increase in restitution, but only for victims or losses not known at the time of sentencing

and, even then, only if the “final amount” of restitution has not yet been set by the

court. § 18-1.3-603(3).

¶8 In Meza we construed the term “final amount” as applied to orders increasing

restitution after judgment of conviction has already entered, finding that upon the entry

of a judgment of conviction, which finalizes a criminal conviction for purposes of

appeal, without also including one of the orders statutorily reserving a determination of

the final amount of restitution for a future proceeding, the criminal court loses any

remaining power it may have to order restitution. Meza, ¶ 16, ___ P.3d at ___. With

regard to the enumerated “order(s) for restitution” authorized by section 18-1.3-603(1),





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the record of the plea and sentencing hearing in this case reveals only an order for the

specific amount of $4,728. See § 18-1.3-603(1)(a). In fact, nothing in the record suggests

that the providency court intended anything other than to accept the defendant’s guilty

plea according to the terms of the plea agreement, which included a stipulation to

restitution in the amount of $4,728. Nor do the People assert anything to the contrary,

arguing instead simply that a specific amount of restitution set by the court does not

become the “final amount” within the contemplation of the statute, unless and until the

court explicitly orders as much.

¶9 While the People’s construction of the term “final amount” may have merit with

regard to orders increasing restitution before the defendant’s conviction itself becomes

final, it cannot be correct with regard to orders purporting to increase restitution

thereafter. As we reasoned in Meza, once the criminal court has lost the power to order

restitution, it clearly cannot alter a specific amount set while it still maintained the

power to do so. Meza, ¶¶ 15–16, ___ P.3d at ___. Therefore, in the absence of statutory

authorization to determine the specific amount of restitution notwithstanding a

judgment of conviction as defined by Crim. P. 32(b)(3), the “final amount” of restitution

contemplated by section 603(3)(a) must refer to an amount of restitution set before the

entry of judgment in the criminal prosecution. Id. at ¶ 16, ___ P.3d at ___.

¶10 Because we determine that the criminal court in this case was without the power

to increase restitution following judgment of conviction, we find it unnecessary to

address the nature of the special statutory proceeding conditionally permitted for a





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subsequent setting of the specific amount of restitution for which the defendant will be

obligated, or the rules by which it should be governed.

Because a judgment of conviction, absent a statutorily authorized order reserving a determination of the final amount of restitution due, finalizes any specific amount already set, the sentencing court lacked the power to increase restitution beyond the previously set amount of $4,728. The judgment of the court of appeals is therefore affirmed.