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Case Law Update: Limits of Imposing Restitution

Updated: Jan 9, 2021

In December of 2019, the Colorado Supreme Court and the Court of Appeals further defined the limits of imposing restitution on an alleged offender. Ultimately, the courts cannot order a defendant to pay restitution where the charges from which the restitution arose have been dropped or the defendant, who was previously ordered to pay restitution, has shown that she does not have the ability to pay.

In People v. Sosa, 2019 COA 182, the Appellate Court held that Alicia Sosa could not have restitution imposed on her because the charges from which the restitution arose had been dropped. The Sosa Court compared this matter with Cowen v. People, 2018 CO 96, which held that restitution could not be imposed for pecuniary losses for a charge from which the defendant had been acquitted. The Sosa Court extended this ruling to charges that were never brought.

Alicia Sosa had been charged with accessory to the crime of first or second degree murder and a charge of accessory to second degree murder heat of passion. The second charge was added after the first to facilitate a plea deal. Sosa plead guilty to the second charge, but the first was dismissed. Sosa acknowledged as part of the plea that she would have to pay restitution, along with her co-defendants. However, the restitution order applied to the first charge that had been dismissed, and not the charge to which Sosa pled. Ultimately, the Appellate Court concluded that Sosa couldn’t be ordered to pay restitution for conduct that was not the basis of the final plea deal. The Appellate Court found that an “offender” who is ordered to pay restitution must arise from a crime of which the offender was convicted. To hold otherwise would be to punish an exonerated defendant, which would violate due process.

On December 9, 2019, the Supreme Court issued its decision in Williams v. People, 2019 CO 101. The Supreme Court’s decision in Williams abrogated the burden-shifting position described in Afentul in 1989. Afentul held that once the prosecution showed that a defendant had not paid restitution, the burden shifted to the defendant to show that she was unable to pay.

Here, Williams allegedly stole $10,000 from her employer. She was given a deferred sentence and ordered to pay restitution, but after three years, Williams had only paid $500 of $10,000. The district court initially found that Williams had not shown that she did not have the ability to pay. Williams appealed, arguing that once she had shown some inability to pay, the burden shifted to the prosecution to show that she was able to pay. The Appellate Court affirmed the district court’s order, and Williams petitioned for certiorari.

The Supreme Court reversed holding that once Williams had shown she had an inability to pay, the prosecution bore the burden of showing that she had the ability to pay before her deferred sentence would be revoked. The Supreme Court reasoned that although this at first glance may be a higher bar for the prosecution to prove, Williams’ probation officer should have information as to Williams’ financial status and what she has done to comply with the terms of her probation, making it easier for the prosecution to prove. Ultimately, the Court concluded that for Williams’ probation to be revoked, it was incumbent on the prosecution to show that she could pay. Because Williams had generally complied with the terms of her probation, and because she had some significant debts making it difficult for her to pay her restitution, the prosecution had not met its burden.

These cases help further define the limits of the imposition and enforcement of restitution for criminal defendants.


Elle J. Byram is a native Midwesterner, born and raised in the Kansas City area.  Elle earned her law degree at the University of California Davis, School of Law.  She earned her Bachelors in Psychology at the University of Colorado at Boulder as well as a Masters in clinical psychology at Pacific Graduate School of Psychology in Palo Alto, CA. Elle has worked for small and large firms doing litigation, corporate work and technology. 

Desiring to start her own practice, Elle stepped out of the corporate world in 2013 and began her own solo firm focused on family law, estate planning and probate administration. Elle's practice focuses primarily in family law, where Elle litigates divorces, represents victims of domestic violence and assists in every other aspect of family law. 

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