Zachary Eugene Babcock v. The People of the State of Colorado

2025 CO 26

• Court: Supreme Court of Colorado
• Decided: May 27, 2025
• Docket: 23SC583
• Status: Published

Opinion

2025 CO 26

Zachary Eugene Babcock, Petitioner v. The People of the State of Colorado, Respondent

No. 23SC583

Supreme Court of Colorado, En Banc

May 27, 2025

Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 20CA1678

Attorneys for Petitioner: Megan A. Ring, Public Defender Jessica A. Pitts, Deputy Public Defender Denver, Colorado

Attorneys for Respondent: Philip J. Weiser, Attorney General Marixa Frias, Assistant Attorney General Denver, Colorado

JUSTICE HOOD delivered the Opinion of the Court, in which JUSTICE BOATRIGHT, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined JUSTICE GABRIEL, joined by CHIEF JUSTICE MÁRQUEZ, concurred in the judgment.

OPINION

HOOD, JUSTICE.

¶1 In almost every criminal case, the court must consider restitution and enter one of four restitution-related orders upon conviction. Zachary Eugene Babcock's judgment of conviction included one such order: The trial court found that he was liable for restitution at sentencing but reserved determining the amount for ninety-one days. However, because Babcock's counsel requested that the trial court hold a restitution hearing and proposed a date that was nearly six months after sentencing, the court didn't order the amount of restitution until after the ninety-one-day deadline. Babcock argues that our decision in People v. Weeks, 2021 CO 75, 498 P.3d 142, or alternatively, the jurisdictional nature of the trial court's deadline, precludes this untimely restitution order.

¶2 We disagree. We hold that Weeks is distinguishable and therefore doesn't nullify the restitution order in this case. We also hold that the trial court's deadline in section 18-1.3-603(1)(b), C.R.S. (2024), isn't jurisdictional. Finally, we conclude that Babcock's counsel's request to set the restitution hearing outside the ninety-one-day deadline constitutes an implied waiver of Babcock's right to have the trial court determine the amount of restitution within ninety-one days of conviction.

I. Facts and Procedural History

¶3 On December 19, 2019, Babcock pleaded guilty to child abuse resulting in serious bodily injury as part of a deferred judgment and sentence agreement. The trial court accepted the plea on the same day and "reserve[d] restitution [for] ninety-one days."^[1] Eighty-two days later, the prosecution moved for $12,258.83 in restitution. On March 18, 2020, ninety days after the court entered the judgment of conviction, Babcock's counsel objected to the amount sought. He asked for a June hearing on restitution due to "the current pandemic the world is facing." When the hearing was ultimately held on August 14, the trial court imposed the prosecution's requested amount of restitution.

¶4 Babcock appealed. He argued that the trial court "lacked authority" to enter the restitution order because it did so more than ninety-one days after sentencing without an express good-cause finding before the deadline expired. See Weeks, ¶ 45, 498 P.3d at 157.

¶5 A unanimous division of the court of appeals disagreed. It held that because neither Weeks nor the statute uses the word "jurisdiction" as to the deadline in section 18-1.3-603(1)(b), the provision isn't jurisdictional and can therefore be waived. People v. Babcock, 2023 COA 49, ¶¶ 9, 11, 535 P.3d 981, 985. The division also concluded that by requesting that the trial court hold a restitution hearing on a date that was more than ninety-one days after entry of the judgment of conviction, Babcock waived his right to have restitution determined within the statutory period. Id. at ¶ 13, 535 P.3d at 986.

¶6 We granted Babcock's petition for certiorari review.^[2]

II. Analysis

¶7 We begin by summarizing our holding in Weeks. We then identify the relevant standard of review and principles of statutory interpretation before evaluating whether the deadline in section 18-1.3-603(1)(b) is jurisdictional. Finally, we assess whether Babcock waived his right to have the trial court determine the amount of restitution within ninety-one days of his conviction.

A. Weeks

¶8 Section 18-1.3-603(1) provides that "[e]very order of conviction^[3] of a felony . . . shall include consideration of restitution," save for a narrow exception not relevant here.^[4] The statute requires a trial court to issue one of four types of restitution orders. Id.

¶9 In Weeks, as here, the trial court entered the second type: "[a]n order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined within the ninety-one days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined." § 18-1.3-603(1)(b); see also Weeks, ¶¶ 11, 14, 32, 498 P.3d at 149-50, 153. We held that the ninety-one-day deadline in subsection (1)(b) is the trial court's deadline, and to extend it, the statute requires the trial court to make an express good-cause finding before it expires. Weeks, ¶ 5, 498 P.3d at 148. Because the trial court in Weeks ordered the amount of restitution "[n]early a year after the sentencing hearing" and hadn't made an express good-cause finding before the deadline expired, id. at ¶¶ 15, 17, 498 P.3d at 150, we concluded that the trial court "lacked authority" to order restitution, id. at ¶ 45, 498 P.3d at 157. We therefore remanded that case "to the trial court with instructions to amend the mittimus to reflect that no restitution is required." Id. at ¶ 10, 498 P.3d at 149.

¶10 Babcock argues that his "case is on all fours with Weeks," and he therefore demands the same result. We disagree. Waiver was not before us in Weeks; neither party raised the issue, and we didn't address it. But even if it had been raised, Weeks is distinguishable for the reasons we articulate in People v. Roberson, 2025 CO 30, ¶¶ 15-16, __ P.3d __, one of the four companion cases we announce today. Specifically, Babcock's counsel requested that the trial court hold a restitution hearing and proposed a date that was nearly six months after sentencing-well beyond the ninety-one-day deadline-and, unlike in Weeks, he didn't argue that the restitution amount must be finalized by the ninety-first day.

¶11 Accordingly, Weeks doesn't mandate the same result here. We therefore turn to Babcock's argument that subsection (1)(b)'s deadline is jurisdictional.

B. The Nature of Section 18-1.3-603(1)(b)'s Deadline

1. Standard of Review and Principles of Statutory Interpretation

¶12 We review questions of statutory interpretation de novo. Weeks, ¶ 24, 498 P.3d at 151.

¶13 "When interpreting a statute, 'our primary purpose is to ascertain and give effect to the General Assembly's intent.'" Cowen v. People, 2018 CO 96, ¶ 12, 431 P.3d 215, 218 (quoting Pineda-Liberato v. People, 2017 CO 95, ¶ 22, 403 P.3d 160, 164). Our starting point is always the statute's language. Carrera v. People, 2019 CO 83, ¶ 17, 449 P.3d 725, 729. We give the statute's words and phrases "their plain and ordinary meanings," id., reading them in context and "constru[ing] them according to the rules of grammar and common usage," People v. Diaz, 2015 CO 28, ¶ 12, 347 P.3d 621, 624. "We construe the statute as a whole, in an effort to give consistent, harmonious, and sensible effect to all its parts." Id. And we don't add or subtract words from a statute. Id.

¶14 When the statutory language is unambiguous, that is the end of our inquiry: We effectuate its plain and ordinary meaning. Carrera, ¶ 18, 449 P.3d at 729. Only when the statutory language is ambiguous-that is, subject to more than one reasonable interpretation-do we turn to other interpretative aids, such as statutory history. Id.

2. Jurisdictional vs. Directory Provisions

¶15 "A court's 'jurisdiction' concerns its 'power to entertain and to render a judgment on a particular claim.'" People in Int. of J.W. v. C.O., 2017 CO 105, ¶ 21, 406 P.3d 853, 858 (quoting In re Estate of Ongaro, 998 P.2d 1097, 1103 (Colo. 2000)). Jurisdiction consists of two elements: subject matter jurisdiction, a "court's authority to deal with the class of cases," People v. Sprinkle, 2021 CO 60, ¶ 15, 489 P.3d 1242, 1245 (quoting C.O., ¶ 24, 406 P.3d at 858), and personal jurisdiction, a court's power over the parties, C.O., ¶ 22, 406 P.3d at 858.

¶16 The Colorado Constitution confers general jurisdiction on district courts, and unless otherwise provided, they have original jurisdiction in all criminal cases. Colo. Const. art. VI, § 9(1). While the General Assembly may limit a court's subject matter jurisdiction, "such limitations must be explicit." Wood v. People, 255 P.3d 1136, 1140 (Colo. 2011).

¶17 Statutory deadlines can be jurisdictional or directory. Jurisdictional deadlines typically limit a court's power over a class of cases and therefore concern a court's subject matter jurisdiction. If the legislature limits a court's jurisdiction through a deadline, a court "has no power to hear a case or enter a judgment" after the deadline has passed. Currier v. Sutherland, 218 P.3d 709, 714 (Colo. 2009); see, e.g., § 16-14-104(1), C.R.S. (2024) ("Within one hundred eighty-two days after the receipt of the request by the court and the prosecuting official . . . the indictment, information, or criminal complaint shall be brought to trial . . . . If, after such a request, the indictment, information, or criminal complaint is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof . . . .").

¶18 On the other hand, directory provisions "indicate[] only what should be done, with no provision for enforcement." Directory Statute, Black's Law Dictionary (12th ed. 2024). Therefore, a trial court's failure to abide by a directory provision may be erroneous, People in Int. of Clinton, 762 P.2d 1381, 1387 (Colo. 1988), but it doesn't necessarily invalidate an action, City & Cnty. of Denver Sch. Dist. No. 1 v. Denver Classroom Tchrs. Ass'n, 2017 CO 30, ¶ 20, 407 P.3d 1220, 1224. ¶19 There is no "bright-line test" to distinguish jurisdictional from directory provisions. Protest of McKenna, 2015 CO 23, ¶ 19, 346 P.3d 35, 41. Rather, the distinction turns on legislative intent. Id. ¶20 With these principles in mind, we return to section 18-1.3-603(1)(b).

3. Application

¶21 Babcock argues that subsection (1)(b)'s ninety-one-day deadline is jurisdictional and therefore can't be waived. To the extent he argues that we held as much in Weeks, he is mistaken. Although we held that the trial court "lacked authority" to order restitution under the circumstances presented by that case, Weeks, ¶ 45, 498 P.3d at 157, we didn't hold that trial courts lack jurisdiction to do so. And as we explain in one of the four companion cases we announce today, Tennyson v. People, 2025 CO 31, ¶ 54, __ P.3d __, "authority" and "jurisdiction" are not the same.

¶22 Moreover, we disagree that subsection (1)(b) is jurisdictional for four reasons: (1) the General Assembly didn't explicitly say subsection (1)(b) is jurisdictional; (2) the statute contains affirmative, rather than negative, language; (3) the statute doesn't attribute any consequence to a violation of the ninety-one-day deadline; and (4) construing the deadline as jurisdictional contravenes the purposes of the statute.

¶23 First, subsection (1)(b) states that a trial court may enter an order at sentencing that the defendant is obligated to pay restitution but that the specific amount "shall be determined within the ninety-one days immediately following the order of conviction, unless good cause is shown for extending the time period." It doesn't state that the trial court loses jurisdiction to order restitution after ninety-one days in the absence of a good-cause finding. On the contrary, it makes no reference to "jurisdiction" at all. This suggests the provision is not jurisdictional.

¶24 Second, subsection (1)(b) pairs "shall" with "be determined," rather than with negative language such as "in no event later than," Pearson v. Dist. Ct., 924 P.2d 512, 516 (Colo. 1996) (quoting DiMarco v. Dep't of Revenue, 857 P.2d 1349, 1352 (Colo.App. 1993)). This type of affirmative language is "more indicative of a directory construction." Id. (quoting DiMarco, 857 P.2d at 1352).

¶25 Third, subsection (1)(b) doesn't attribute any consequence to a violation of the deadline. Provisions that have "[n]o penalty . . . prescribed, nor consequence attached" for failure to comply are generally considered directory. Kemper v. Kemper, 344 P.2d 449, 450-51 (Colo. 1959) (quoting Gen. Accident, Fire & Life Assurance Corp., Ltd., of Perth, Scot. v. Cohen, 216 P. 522, 524 (Colo. 1923)); see also City & Cnty. of Denver Sch. Dist. No. 1, ¶ 20, 407 P.3d at 1224.

¶26 Finally, interpreting the deadline as jurisdictional would contravene the stated purposes of the statute: to "provide for and collect full restitution for victims of crime in the most expeditious manner" and to facilitate "[t]he effective and timely assessment, collection, and distribution of restitution." § 18-1.3-601(1)(g), C.R.S. (2024). The General Assembly directed that the provisions of the statute are to be "liberally construed" to ensure restitution is "ordered, collected, and disbursed to the victims of crime and their immediate families." § 18-1.3-601(2). Were we to construe the deadline as jurisdictional, a victim, who has a statutory right to restitution, § 24-4.1-302.5(1)(h), C.R.S. (2024), could receive no compensation due solely to a trial court's failure to meet the deadline. Such a result is antithetical to the statute's purposes.

¶27 Because we hold that subsection (1)(b) isn't jurisdictional, its provisions can be waived. See Sprinkle, ¶ 17, 489 P.3d at 1246. We now consider whether Babcock waived the ninety-one-day deadline here.

C. Waiver of Section 18-1.3-603(1)(b)'s Deadline

¶28 We review de novo whether a claim is waived. Richardson v. People, 2020 CO 46, ¶ 21, 481 P.3d 1, 5.

¶29 Unlike waiver of a constitutional right, waiver of a statutory right "must be voluntary, but need not be knowing and intelligent." Finney v. People, 2014 CO 38, ¶ 16, 325 P.3d 1044, 1050. Waiver may be explicit, such as "when a party expressly abandons an existing right or privilege," or implied, such 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. Waiver extinguishes error and therefore any appellate review. People v. Rediger, 2018 CO 32, ¶ 40, 416 P.3d 893, 902.

¶30 The right to have the trial court determine the amount of restitution within ninety-one days of conviction arises from subsection (1)(b) rather than from the constitution, so waiver need only be voluntary, or "the product of a free and deliberate choice rather than intimidation, coercion, or deception." People v. Smiley, 2023 CO 36, ¶ 16, 530 P.3d 639, 644 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Babcock's counsel requested that a restitution hearing be set after the ninety-one-day deadline would expire. This request "manifest[ed] an intent to relinquish" Babcock's right to have the trial court determine the amount of restitution within ninety-one days of his conviction and was, therefore, inconsistent with the right's assertion. Forgette, ¶ 28, 524 P.3d at 7; see also Finney, ¶ 16, 325 P.3d at 1050 ("Counsel may waive a defendant's statutory rights."). In essence, defense counsel impliedly requested that the trial court order the amount of restitution after the deadline would expire, so Babcock cannot now complain that he didn't voluntarily waive the right.

III. Conclusion

¶31 The judgment of the court of appeals is affirmed.

JUSTICE GABRIEL, joined by CHIEF JUSTICE MÁRQUEZ, concurred in the judgment.

JUSTICE GABRIEL, joined by CHIEF JUSTICE MÁRQUEZ, concurring in the judgment.

¶32 The majority concludes that when the prosecution filed a motion for restitution within the statutory deadline and Zachary Eugene Babcock asked the court to set a hearing on restitution outside the ninety-one-day deadline for the court to determine restitution, Babcock implicitly waived his right to have the court set the amount of restitution within the ninety-one-day period. Maj. op. ¶¶ 2, 30. The majority reaches this conclusion notwithstanding the absence of evidence that Babcock was aware of the deadline and its effect and that he intended to waive it.

¶33 Because I believe that the majority's ruling is inconsistent with the plain meaning of the word "waiver," and because I further believe that the majority's opinion undermines the principles of waiver and forfeiture that we articulated unanimously just seven years ago in People v. Rediger, 2018 CO 32, ¶¶ 39-40, 416 P.3d 893, 902, I respectfully disagree.

¶34 In my view, when a defendant asks the court to set a hearing outside the statutory deadline, this constitutes good cause under section 18-1.3-603(1)(b), C.R.S. (2024), for extending the court's deadline for setting restitution. ¶35 Accordingly, I would conclude that the record in this case established good cause to set restitution beyond the statutory deadline, and thus I would reach the same result as the majority but for different reasons. I therefore respectfully concur in the judgment, only.

I. Factual Background

¶36 The material facts are not disputed.

¶37 Babcock pleaded guilty to child abuse resulting in serious bodily injury as part of a deferred judgment and sentencing agreement. The trial court accepted Babcock's plea and reserved restitution for ninety-one days.

¶38 Eighty-two days later, on March 10, 2020, the prosecution filed a motion to impose restitution, and on March 18, 2020, ninety days after the court accepted Babcock's plea, Babcock objected to the restitution request and asked that the court set a hearing for June 2020. The court agreed to Babcock's request, although, due to the COVID-19 pandemic, the hearing was ultimately postponed until August 14, 2020. At that time, the court imposed the restitution requested by the prosecution.

¶39 Babcock appealed, and in a unanimous, published opinion, a division of our court of appeals affirmed the restitution award, concluding that when a defendant requests a hearing on restitution outside the ninety-one-day statutory deadline by which a court must set restitution, the defendant waives any challenge to the timeliness of the restitution award. People v. Babcock, 2023 COA 49, ¶ 1, 535 P.3d 981, 984.

¶40 We then granted Babcock's petition for a writ of certiorari.

II. Analysis

¶41 I begin by setting forth the applicable legal principles underlying our decision in this case. I then explain why I believe that when, as here, a criminal defendant asks a court to set a hearing outside the statutory deadline, this constitutes good cause under section 18-1.3-603(1)(b) to allow the court to set the amount of restitution beyond the ninety-one-day statutory deadline. Finally, I explain why I disagree with the majority's conclusion that Babcock implicitly waived his challenge to the timeliness of the restitution award.

A. Applicable Legal Principles

¶42 Our restitution statute, section 18-1.3-603, provides, in pertinent part:

(1) Every order of conviction of a felony . . . shall include consideration of restitution. Each such order shall include one or more of the following:

(a) An order of a specific amount of restitution be paid by the defendant;

(b) An order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined within the ninety-one days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined;

(c) An order, in addition to or in place of a specific amount of restitution, that the defendant pay restitution covering the actual costs of specific future treatment of any victim of the crime; or (d) Contain a specific finding that no victim of the crime suffered a pecuniary loss and therefore no order for the payment of restitution is being entered.

(2)(a) The court shall base its order for restitution upon information presented to the court by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. Further, the prosecuting attorney shall present this information to the court prior to the order of conviction or within ninety-one days, if it is not available prior to the order of conviction. The court may extend this date if it finds that there are extenuating circumstances affecting the prosecuting attorney's ability to determine restitution.

(Emphases added.)

¶43 We recently construed these provisions in People v. Weeks, 2021 CO 75, ¶¶ 29-40, 498 P.3d 142, 152-55. There, we first concluded that section 18-1.3-603(2) controls "the timeframe within which the prosecution must submit the proposed amount of restitution." Id. at ¶ 31, 498 P.3d at 153. We said that under that subsection, the prosecution must file the proposed amount of restitution before the judgment of conviction enters, or, if the information is not then available, within ninety-one days of the judgment of conviction. Id. We further noted that the court may extend this deadline only if it finds "extenuating circumstances affecting the prosecution's ability to determine the proposed amount of restitution." Id.

¶44 We next concluded, based on the statute's plain language, that the ninety-one-day deadline set forth in section 18-1.3-603(1)(b) refers to the court's deadline to determine the amount of restitution to be imposed, and we observed that the court may extend this deadline only for good cause shown. Weeks, ¶ 39, 498 P.3d at 154-55.

¶45 Finally, we concluded that any findings of extenuating circumstances to extend the prosecution's deadline for submitting restitution information and of good cause to extend the court's deadline to determine the amount of restitution had to be made expressly and before the deadline expired. Id. at ¶ 40, 498 P.3d at 155.

¶46 Applying those principles to the case there before us, where the trial court had determined the amount of restitution long after the statutory deadline and without a timely finding of good cause, we concluded that by the time the trial court had ordered Weeks to pay restitution, it lacked the authority to do so. Id. at ¶ 45, 498 P.3d at 157. We therefore affirmed the court of appeals division's judgment vacating the restitution award in that case. Id. at ¶ 47, 498 P.3d at 157. ¶47 Having thus set out the governing legal principles, I turn to the issues now before us.

B. Good Cause to Extend the Statutory Deadline

¶48 The principal question presented is whether, when the prosecution timely filed its motion to impose restitution and Babcock requested a hearing beyond the deadline set forth in section 18-1.3-603(1)(b) for the sentencing court to impose restitution, the court properly set the hearing in accordance with Babcock's request and determined the amount of restitution beyond the statutory deadline. Like the majority, see Maj. op. ¶¶ 1-2, 30-31, I believe that it did, but I reach this conclusion for a different reason.

¶49 As noted above, section 18-1.3-603(1)(b) allows a court to extend its ninety-one-day deadline for determining the amount of restitution when "good cause is shown for extending the time period by which the restitution amount shall be determined."

¶50 In my view, when the prosecution timely files its motion to impose a specific amount of restitution and when, as here, a defendant objects and expressly asks the court to set a hearing on the restitution motion beyond the ninety-one-day statutory deadline and the court honors that request, good cause is plainly shown for extending the time period by which the court must determine the restitution amount.

¶51 Such a conclusion is fully consistent with the plain language of section 18-1.3-603(1)(b), which requires no more than that good cause be shown, and it produces a just result for all parties and the victims to whom restitution will be awarded.

¶52 Accordingly, on the facts presented, I would conclude that when the prosecution timely sought the imposition of a specific amount of restitution and Babcock requested and the court granted a hearing beyond the ninety-one-day statutory deadline, then the record established good cause to allow the court to set restitution beyond the statutory deadline. Accordingly, I would reject Babcock's challenge to the timeliness of the restitution award and affirm the judgment of the division below, although on a different ground from that on which the division relied (and on which the majority here relies).

¶53 In reaching this conclusion, I acknowledge that in Weeks, ¶ 40, 498 P.3d at 155, we said that a finding of good cause to extend the court's deadline to determine the amount of restitution had to be made expressly and before the deadline expires. Although I certainly agree that good cause must be shown on the record prior to the expiration of the statutory deadline, and although it might well be a good practice for the trial court to make an express finding of good cause on the record, I would modify our statement in Weeks to clarify that section 18-1.3-603(1)(b) requires only that good cause be shown on the record, not an express finding of good cause by the trial court.

C. Babcock Did Not Implicitly Waive His Rights Here

¶54 Although I ultimately reach the same conclusion as the majority in this case, I cannot agree with the majority's reasoning.

¶55 As noted above, the majority concludes that in requesting that the trial court set a hearing on the amount of restitution beyond the statutory deadline, Babcock implicitly waived any objection to the timeliness of the order setting that amount. Maj. op. ¶¶ 2, 30. In my view, however, this analysis is inconsistent with the plain meanings of waiver and forfeiture that we articulated just seven years ago in our unanimous opinion in Rediger, ¶¶ 39-40, 416 P.3d at 902.

¶56 In Rediger, we began by quoting the long-recognized definition of waiver, namely, that waiver is "the intentional relinquishment of a known right or privilege." Id. at ¶ 39, 416 P.3d at 902 (quoting Dep't of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). We further noted the time-honored principle that "we 'do not presume acquiescence in the loss of fundamental constitutional rights, and therefore indulge every reasonable presumption against waiver.'" Id. (quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)).

¶57 We next observed that the requirement of an intentional relinquishment of a known right or privilege distinguishes a waiver from a forfeiture, which, we noted, "is 'the failure to make the timely assertion of a right.'" Id. at ¶ 40, 416 P.3d at 902 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). In support of this statement, we cited federal case law noting that waiver is accomplished by intent whereas a forfeiture results from neglect. Id. (citing United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007)). And we highlighted that the distinction between a waiver and a forfeiture is important because a waiver extinguishes error and, thus, appellate review, while a forfeiture does not. Id. Rather, we may review a forfeited error under the plain error standard. Id. ¶58 In my view, Rediger served to clarify the principle of waiver, which had become muddled to the point that parties found it easy to assert waivers in all manner of circumstances. And my experience reading hundreds of briefs since we decided Rediger suggests to me that our clarification was successful. We have seen far fewer allegations of waiver and repeated (and correct) acknowledgements of the distinctions between waivers and forfeitures that we so carefully articulated in Rediger.

¶59 Today, however, the majority appears to backtrack on what has been clear for at least the last seven years and again makes it easier for parties to assert waivers, concluding that, at least for statutory claims (which, of course, far outnumber constitutional claims), a party asserting a waiver need not show intent (or a knowing and intelligent waiver), but need show only that the other party acted voluntarily. Maj. op. ¶ 29.

¶60 The majority does not explain why the term "waiver" should be defined one way if the matter involves constitutional rights and a different way if it involves statutory ones. In my view, a waiver is the intentional relinquishment of a known right regardless of the context in which it arises.

¶61 The majority's construct also undermines the distinction that we described in Rediger between a waiver, which extinguishes a party's right, and a forfeiture, which does not. Accordingly, in cases in which an attorney, through oversight or neglect, fails to assert a client's right, the client will again be foreclosed from ever asserting that right. In my view, such a result is unjust and denies access to justice for innumerable parties. It also undermines the fundamental principles that (1) we must indulge every reasonable presumption against waiver, Rediger, ¶ 39, 416 P.3d at 902; and (2) "the law abhors a forfeiture," Derby v. Police Pension & Relief Bd., 412 P.2d 897, 899 (Colo. 1966).

¶62 Finally, in light of the foregoing definitions and heretofore settled legal principles, I perceive no basis to conclude that Babcock implicitly waived his right to challenge the timing of the setting of the amount of restitution when he asked the trial court to set a hearing beyond the ninety-one-day deadline set forth in section 18-1.3-603(1)(b). The record does not demonstrate that either Babcock or his attorney was aware of the nature of that deadline or its effect. Indeed, the manifest confusion regarding the interpretation of the restitution statute is what precipitated our decision in Weeks, ¶¶ 1-2, 498 P.3d at 147, which we decided after Babcock requested a hearing outside the statutory deadline in this case. Accordingly, in my view, the record does not establish any intention on Babcock's part to waive his rights. Rather, his attorney's decision to seek a hearing beyond the statutory deadline was most likely based on the same confusion regarding the proper interpretation of the restitution statute that, we noted in Weeks, had led prosecutors and courts to routinely misapply the deadlines set forth in that statute. Id. At worst, counsel's decision to seek a hearing beyond the statutory deadline was the result of oversight or neglect, not intent to waive that deadline. Either way, in such circumstances, I would not close the courthouse door on Babcock, and I would allow him to be heard, as my good cause analysis would do.

III. Conclusion

¶63 For these reasons, I would conclude that the record here established good cause to extend the trial court's statutory deadline to determine the amount of restitution. I do not, however, agree with the majority's view that Babcock implicitly waived his right to challenge the setting of restitution outside the statutory deadline.

¶64 Accordingly, although I, too, would affirm the judgment of the division below, I would do so on different grounds from those on which the majority relies. I therefore concur in the judgment only.

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^[1] Unlike in one of the four companion cases we also announce today, Snow v. People, 2025 CO 32, P.3d, there has been no debate here about Babcock's liability for restitution. Admittedly, as in Snow, the reservation of restitution is cryptic, and it isn't clear from the record that Babcock agreed to pay restitution as part of the plea agreement. See id. at ¶¶ 6-7. Although the subsequent motion to impose restitution states, "The defendant agreed, as part of the plea, that restitution would remain open for [ninety-one] days," the plea documents tell a different story: "Not Applicable" is marked under the statement, "[T]he defendant is liable for all restitution to be paid as ordered" in the Consent for Entry of Deferred Sentencing; the plea agreement doesn't mention restitution; and the transcript of the providency hearing reveals that the prosecution stated, "I'd be asking to reserve restitution, although we did not make it, ah, a binding obligation to [Babcock]." Nevertheless, because Babcock hasn't contested his liability to pay restitution, any question about that issue hasn't been preserved. Therefore, this opinion focuses on section 18-1.3-603(1)(b) and the implied waiver of the right to have the trial court determine the amount of restitution within ninety-one days of conviction.

^[2] We granted certiorari to review the following issues:

1. Whether, under People v. Weeks, 2021 CO 75, a restitution order must be vacated where the court failed to enter a restitution order within ninety-one days after the order of conviction and failed to make an explicit good cause finding to extend the deadline.

2. Whether the ninety-one-day deadline to enter a restitution order is jurisdictional and cannot be waived.

3. Whether, even if the ninety-one-day deadline to enter a restitution order is not jurisdictional, a defendant may waive the court's obligation to timely impose restitution by objecting to the amount of restitution and requesting a hearing.

^[3] For restitution purposes, a conviction includes "having received a deferred judgment and sentence or deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication." § 18-1.3-602(2), C.R.S. (2024).

^[4] The statute doesn't require consideration of restitution in "any order of conviction for a state traffic misdemeanor offense issued by a municipal or county court in which the prosecuting attorney is acting as a special deputy district attorney pursuant to an agreement with the district attorney's office." § 18-1.3-603(1).