People v. Foos
2016 COA 139
| Colo. Ct. App. | 2016Background
- In 2011 Foos filed bankruptcy and received a discharge of debts owed to several creditors, including victims in a later criminal complaint.
- In 2013 Foos was charged with two counts of felony theft and one count of defrauding a secured creditor; the original district attorney recused due to a connection with creditors.
- A special prosecutor from another district was appointed and pursued the case; Foos pleaded guilty to defrauding a secured creditor in exchange for dismissal of the theft counts.
- The parties stipulated to a three-year deferred judgment and sentence with a requirement for full restitution.
- The district court ordered Foos to pay $58,047.13 in restitution to victim Perry Huffman; Foos appealed arguing the restitution order was erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a restitution order can be imposed after defendant discharged related debt in bankruptcy | Restitution is part of a criminal sentence and not dischargeable; court can order restitution post-discharge | Discharge precluded restitution because debt already extinguished before charges | Court held restitution proper; bankruptcy discharge does not prevent restitution (Milne/Kelly) |
| Whether prosecution was in bad faith to coerce payment of discharged debt | Prosecution proceeded independently (special prosecutor) to vindicate public interest | Charges were motivated by creditors and thus in bad faith to coerce payment | Court held no bad-faith prosecution: special prosecutor acted independently; defendant waived challenges by pleading guilty |
| Whether restitution may be ordered for losses tied to dismissed counts or uncharged acts | Victim losses may be compensated regardless of which count is convicted | Restitution improper because Huffman was a victim only of a dismissed theft count | Court held restitution permissible; victim need not be a named victim in the conviction (People v. Borquez) |
Key Cases Cited
- People v. Milne, 690 P.2d 829 (Colo. 1984) (restitution as part of criminal sentence remains available despite prior bankruptcy discharge)
- Kelly v. Robinson, 479 U.S. 36 (U.S. 1986) (criminal-sentence conditions, including restitution, are not dischargeable in bankruptcy)
- United States v. Carson, 669 F.2d 216 (5th Cir. 1982) (probation conditioned on restitution may follow a bankruptcy discharge)
- People v. Borquez, 814 P.2d 382 (Colo. 1991) (victim for restitution need not be a named victim in the conviction)