Justice Hart delivered the Opinion of the Court, in which
Justice Boatright, Justice Hood, Justice Samour, and Justice
Berkenkotter joined. Justice Gabriel, joined by Chief Justice
Márquez, concurred in the judgment.
OPINION
HART,
JUSTICE
¶1
Jessica Jo Roberson pleaded guilty to one count of forgery
and one count of theft and agreed to pay $21,450 in
restitution, with "additional restitution" to be
determined. Defense counsel confirmed this agreement to the
court during the providency hearing. Then at sentencing,
Roberson herself told the court that she "most
definitely want[ed] to repay the victims." Twenty-eight
days later, the prosecution filed a proposed order for
$62,241.28 in restitution. Roberson's counsel objected
and asked for additional time to review the numbers
underlying the proposed amount. The court offered a hearing
date outside the ninety-one-day statutory deadline in section
18-1.3-603(1)(b), C.R.S. (2024), to make a final
determination of the restitution amount. Roberson's
counsel accepted that date.
¶2
The question we answer here is whether Roberson's
acceptance of a hearing date outside the ninety-one-day
statutory deadline constituted a voluntary waiver of a
statutory right. We conclude that it did.
I.
Facts and Procedural History
¶3
Roberson formerly worked for a car dealership. During the
time she was employed at the dealership, she apparently
forged her name on four business checks and used the company
credit card to make several unauthorized purchases. She
pleaded guilty to felony counts of forgery and theft,
misdemeanor criminal mischief, and a probation violation. At
the time of sentencing, the victim had
determined the value of certain elements of these offenses
but told the prosecution he needed more time to go through
records to determine what other losses might be directly
attributable to Roberson's conduct. The plea agreement,
which was part of the sentence, therefore provided that the
"parties stipulate to $21,450.00 in restitution for the
benefit of [the victim]. Additional restitution will be
reserved."
¶4
Accordingly, during the sentencing hearing on June 25, 2020,
the district court stated that it would "order
restitution, reserving the amount, and give the People until
July 24[] to file any notice," after which it would give
Roberson fourteen days to file an objection. At defense
counsel's request, however, the court changed
Roberson's objection deadline to twenty-one days after
the notice and stated: "[I]f you need an extension at
that point, just file a motion[,] [a]nd we'll see where
we are within the [ninety-one] days."
¶5
Twenty-eight days after sentencing, on July 23, the
prosecution requested restitution in the amount of
$62,241.28. The next day, consistent with its original
sentencing order but not with the colloquy at sentencing, the
court ordered that Roberson had fourteen days, until August
7, to file an objection to the restitution request. On August
10, because defense counsel had not filed an objection, the
court entered an order for the amount of restitution
requested by the prosecution.
¶6
On August 11, however, defense counsel filed an objection and
asked the court to reconsider its restitution order because
she had relied on the court's
statement at sentencing that Roberson would have twenty-one
days to object to the restitution amount. The court granted
Roberson's motion "based on the reasons stated in
the motion" and directed the parties to set the matter
for a status conference.
¶7
The court held a status conference on August 13, at which
defense counsel, who was new to the case, explained that she
needed additional time to gather information about the plea
negotiations as well as additional information from the
prosecution to substantiate the claimed amount of
restitution. At that conference, the court proposed a hearing
date of October 2, which was outside the ninety-one-day
statutory deadline for determining restitution. §
18-1.3-603(1)(b) ("subsection (1)(b)"). Defense
counsel agreed to that date.
¶8
Several additional continuances were requested, most by
defense counsel, and the restitution hearing was ultimately
held on two days in August and September 2021. On the final
day of the restitution hearing-446 days after
sentencing-Roberson argued that the court lacked the
authority to enter any restitution because the ninety-one-day
statutory deadline had passed. The court disagreed and stated
that it "[could] find, and [did] find, good cause to not
have entered the order for restitution based upon the
objection and the necessity of setting it for a
hearing." Ultimately, the court found that the
prosecution provided
sufficient evidence to establish restitution in the amount of
its most recent amended request of $59,870.93.
¶9
Roberson appealed. A week after Roberson filed her notice of
appeal, we issued our opinion in People v. Weeks,
2021 CO 75, ¶ 5, 498 P.3d 142, 148, and held that trial
courts must determine and order the amount of restitution
owed within ninety-one days of sentencing, absent an express
and timely finding of good cause to extend that deadline.
Pursuant to Weeks, Roberson argued in the court of
appeals that the district court lacked the authority to order
restitution because it didn't make an express good-cause
finding before the statutory deadline passed. The People
countered that Roberson had waived this claim by accepting a
hearing date outside the ninety-one-day deadline and then
requesting additional extensions beyond that timeframe.
¶10
A unanimous division of the court of appeals agreed with
Roberson, explaining that neither an implicit finding of good
cause nor one made after the statutory deadline expires is
sufficient to extend the deadline. People v.
Roberson, 2023 COA 70, ¶ 12, 537 P.3d 825, 828. The
division noted that the district court had initially entered
a timely restitution order on August 10, 2020, but concluded
that the court had ultimately failed to meet the deadline to
enter a final order when it set a status conference for
October 2 without making an express good-cause finding.
Id. at ¶ 14, 537 P.3d at 828. The division
rejected the People's argument
that Roberson had waived this claim because Roberson accepted
the October 2 hearing date. According to the division,
"[h]ad the legislature intended for acceptance of a date
beyond the ninety-first day to have these [waiver]
consequences, it would have so indicated in the plain
language of the restitution statute." Id. at
¶ 29, 537 P.3d at 831. The division further concluded
that the People's argument that Roberson's several
requests for continuances constituted waiver similarly lacked
merit because the district court "was already without
authority to order restitution" once the ninety-one-day
deadline had passed. Id. at ¶ 30, 537 P.3d at
831. Accordingly, the division vacated the district
court's restitution order. Id. at ¶ 34, 537
P.3d at 831.
¶11
The People petitioned this court for certiorari review, and
we granted that petition.[1]
¶12
For the reasons we explain in our opinion in Babcock v.
People, 2025 CO ___, ¶¶ 21-26, ___P.3d ___,
one of the four companion cases we announce today, the
ninety-one-day statutory period within which a judge should
set a restitution amount is not jurisdictional and can be
waived.
¶13
We review de novo whether a claim is waived. Richardson
v. People, 2020 CO 46, ¶ 21, 481 P.3d 1, 5. When
the right at issue is a statutory right, waiver "must be
voluntary, but need not be knowing and intelligent."
Finney v. People, 2014 CO 38, ¶ 16, 325 P.3d
1044, 1050.[2] Waiver can be demonstrated through
explicit words or actions, or it may be implied "as when
a party engages in conduct that manifests an intent to
relinquish a right or privilege or acts inconsistently with
its assertion." Forgette v. People, 2023 CO 4,
¶ 28, 524 P.3d 1, 7. Moreover, when statutory rights are
at issue, the actions of counsel are relevant to our
analysis, as "[c]ounsel may waive a defendant's
statutory rights." Finney, ¶ 16, 325 P.3d
at 1050. Waiver extinguishes error and therefore appellate
review. Rediger, ¶ 40, 416 P.3d at 902.
¶14
Here, the right asserted is statutory: the right to have a
restitution amount ordered within ninety-one days of
sentencing absent an express finding of good
cause to extend that deadline. § 18-1.3-603(1)(b). And
the People assert that Roberson waived any claim that the
restitution order against her must be vacated due to the
alleged violations of the statutory deadline. Therefore, the
issue before us is whether the record demonstrates a
voluntary waiver of Roberson's statutory rights. We
conclude that it does.
¶15
Roberson asserts that her case is indistinguishable from
Weeks. But it is not, and the differences are
pivotal. In Weeks, the People did not argue before
this court that a waiver had occurred, and Weeks, in fact,
asserted his statutory rights before the ninety-one-day
deadline had lapsed. In Weeks, without defense
objection, the trial court granted the prosecution ninety-one
days to request an amount of restitution. ¶ 11, 498 P.3d
at 149. Nine days later, however, the prosecutor filed a
motion asking the court to enter an "interim
amount" of $525.00 while he investigated whether there
were grounds to seek more. Id. at ¶ 12, 498
P.3d at 149. Twenty-three days after the prosecution's
motion, well before the expiration of the ninety-one days,
defense counsel objected, arguing that the issue of a
restitution amount could not remain open indefinitely so the
"interim amount" should be considered final.
Id. at ¶ 13, 498 P.3d at 149. The court did not
act on either the prosecution's motion or the
defendant's objection. Id. at ¶¶
12-13, 498 P.3d at 149. Eventually, at a defense-requested
hearing ten months after sentencing, the defendant argued
that the court no longer had the authority to order a
restitution
amount because the ninety-one-day deadline in subsection
(1)(b) had lapsed. Id. at ¶ 14, 498 P.3d at
149-50.
¶16
By contrast, here, Roberson did not object to the trial
court's suggestion that the parties hold a second status
conference on October 2-ninety-nine days after
sentencing. That second conference was set in response to
Roberson's request for more documentation regarding the
amount of restitution, which had been requested twenty-eight
days after sentencing. What's more, Roberson then
requested four additional continuances between
October 2 and June 25 of the following year, despite the fact
that the ninety-one days had already elapsed. Unlike in
Weeks, at no point did Roberson argue that the
amount she assented to in her plea agreement should be
finalized on the ninety-first day. And it was not until 446
days after sentencing that Roberson even attempted to assert
her statutory right to a restitution order within ninety-one
days.
¶17
Roberson's failure to object to a hearing outside the
statutory deadline and subsequent repeated requests for
continuances-all without any mention of the ninety-one-day
deadline despite numerous opportunities to do so-reflects
"conduct that manifests an intent to relinquish a right
or privilege or acts inconsistently with its assertion."
Forgette, ¶ 28, 524 P.3d at 7. The
division's conclusion to the contrary was in error.
Roberson's failure to object to the October 2 hearing,
when it fell outside of the ninety-one-day deadline and when
the statutory deadline had been expressly mentioned at the
sentencing hearing, constituted a voluntary waiver of a
statutory right.
¶18
Roberson voluntarily waived the statutory claim she presented
to the court of appeals and now presents to this court.
Accordingly, we reverse the division's opinion and remand
the case for further proceedings, including consideration of
Roberson's contentions not previously reached by the
division.
JUSTICE GABRIEL, joined by CHIEF JUSTICE MÁRQUEZ,
concurred in the judgment.
JUSTICE GABRIEL, joined by CHIEF JUSTICE MÁRQUEZ,
concurring in the judgment.
¶19
For the reasons set forth in my opinion concurring in the
judgment in Babcock v. People, 2025 CO 26,
___P.3d___ (Gabriel, J, concurring in the judgment), which is
also being announced today, I continue to believe that a
waiver is "the intentional relinquishment of a
known right or privilege." People v.
Rediger, 2018 CO 32, ¶ 39, 416 P.3d 893, 902
(quoting Dep't of Health v. Donahue, 690 P.2d
243, 247 (Colo. 1984)). Accordingly, for the reasons further
set forth in my separate opinion in Babcock,
¶¶ 54-62, I cannot agree with the majority's
conclusion that Jessica Jo Roberson implicitly waived her
claim of a violation of the restitution statute when she
assented to a hearing on her objection to the district
court's restitution order after the restitution
statute's ninety-one-day deadline, §
18-1.3-603(1)(b), C.R.S. (2024), had expired. Maj. op.
¶¶ 12-17.
¶20
For different reasons, however, I reach the same ultimate
conclusion in this case as the majority. Here, the district
court entered an order determining the amount of restitution
before the expiration of the statutory ninety-one-day period.
Accordingly, the entry of the order complied with the
statute. It was only after the court entered its timely order
that Roberson objected and sought a hearing, and she then
requested multiple continuances of that hearing. In these
circumstances, any error by the court in reconsidering its
restitution award after the expiration of the ninety-one-day
deadline was arguably invited by Roberson.
See Rediger, ¶ 34, 416 P.3d at 901 (noting that
the invited error doctrine prevents parties from complaining
on appeal of errors that they invited or injected into a
case). Even if any such error was not invited, however, for
the reasons set forth in my separate opinion in
Babcock, ¶¶ 48-53, I believe that
Roberson's request for or assent to a hearing beyond the
ninety-one-day statutory deadline established good cause
under section 18-1.3-603(1)(b) for extending that deadline.
¶21
For these reasons, I perceive no error in the district
court's conducting a hearing on Roberson's objection
to the restitution award beyond the statute's
ninety-one-day deadline. Accordingly, I respectfully concur
in the majority's judgment.
---------
[1] We granted certiorari to review the
following issues:
1. Whether a defendant invites error or waives a claim
that their restitution order must be vacated due to statutory
procedural violations when they agree to pay restitution in
their plea agreement, object to a timely restitution request
and order, and request and expressly agree to a restitution
hearing set beyond the ninety-one-day statutory
deadline.
2. If not waived or invited, whether an appellate
court can affirm a restitution order where a violation of the
restitution statute's procedural requirements is
harmless.
[2] This is an important distinction from
waiver of a fundamental constitutional right, which we have
emphasized is "the intentional relinquishment of a
known right or privilege." People v.
Rediger, 2018 CO 32, ¶ 39, 416 P.3d 893, 902
(quoting Dep'ts of Health v. Donahue, 690 P.2d
243, 247 (Colo. 1984)).