Opinion
No. 88CA0609
Decided August 9, 1990. Rehearing Denied September 6, 1990.
Certiorari Granted December 10, 1990 (90SC630). Certiorari Granted on the following issues: Whether the trial court exceeded its statutory authority in ordering restitution for damages that were not the basis of the defendant's plea.
Appeal from the District Court of Adams County Honorable Harlan R. Bockman, Judge
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Ann Feinstein Levis, Assistant Attorney General, Wendy Ritz, Assistant Attorney General, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, for Defendant-Appellant.
Defendant, Christine Borquez, appeals the trial court's order of restitution. We vacate the order.
Defendant contends that the trial court exceeded its statutory authority in ordering restitution for damages which were not the basis of her plea. We agree.
Unless defendant consents to a more extensive order, a defendant granted probation upon conviction of an offense may be required to pay restitution only to persons injured by the conduct alleged as the basis of the conviction. Such allegations would generally be found in the information or indictment. People v. Quinonez, 735 P.2d 159 (Colo. 1987).
Here, the information charged defendant with theft from a department store on December 5, 1986. Pursuant to a plea agreement, defendant pled guilty to the added charge of attempted theft. Since the store had already recovered the items taken on December 5, 1986, the trial court ruled that there was no restitution due as to those items.
While defendant admitted to other uncharged thefts from the store, she did not consent to pay restitution to the store for these thefts. At the time that the plea was entered, defendant's counsel stated:
"Miss Borquez will be pleading guilty to a reduced charge, a Class 5 Felony. Additionally, the district attorney has agreed there will be no other filings based out of this series of events. Finally, the issue of restitution is left completely open, which we'll have to bring up to the Court probably at sentencing and let the Court resolve it."
The issue of restitution was vigorously contested at the sentencing hearing. At that time, defendant's counsel stated:
"We've read the pre-sentence report, have no additions or corrections.
"I would indicate to the Court that the last time we were here we told the Court that there was an issue as to restitution, and if the Court wants to take that up after sentencing, we can do that."
At three other points during the hearing, defendant's counsel strongly argued against any restitution. Hence, there was no consent to the restitution ordered.
The trial court's reliance on People v. Milne, 690 P.2d 829 (Colo. 1984) in ordering restitution is misplaced. In Milne, the elements of the offense charged — unlicensed sale of securities — did not include injury to any particular person or entity. The theft statute, § 18-4-401(6), C.R.S. (1986 Repl. Vol. 8B), on the other hand, requires the name of the victim. Therefore, the trial court exceeded its authority in ordering restitution for other thefts to which the defendant did not plead guilty.
We are unaware of any authority that would approve or disapprove the authorization of payment of interest on the reimbursement of restitution which defendant now requests. This matter may be explored by the trial court on remand.
We need not address defendant's other contention of error.
The order is vacated, and the cause is remanded to the trial court for reimbursement of restitution and for consideration of whether interest is appropriate.
JUDGE CRISWELL concurs.
JUDGE NEY dissents.