296 P.3d 121
Colo. Ct. App.2011Background
- Hill was sentenced May 9, 2008 to six years in DOC plus three years mandatory parole for second degree assault-serious bodily injury; restitution was included and amount objected to within 30 days.
- Hill moved to withdraw his guilty plea and vacate the sentence; the court denied, and Hill appealed June 23, 2008 prior to restitution resolution.
- A restitution hearing occurred October 23, 2009; a restitution order was entered November 24, 2009.
- Hill moved May 10, 2010 to supplement the record with various transcripts, granted except as to restitution because no timely amended notice of appeal regarding restitution was shown.
- On February 9, 2011, Hill sought leave to file an amended notice of appeal to include the restitution issues; the court addressed whether a separate notice of appeal was required and what standard applies for an untimely restitution appeal.
- The court held the restitution order is separately appealable, Hill’s motion was untimely, and no good cause under C.A.R. 26(b) was shown; the motion to amend was denied and the appeal proceeds on original issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the restitution order separately appealable? | Hill treated the restitution order as part of the sentencing appeal. | Restitution order is a separate appealable order under 18-1-409(1). | Yes; restitution order is separately appealable. |
| Is Hill's amended notice of appeal regarding restitution timely? | Hill’s motion should be treated as a separate notice of appeal and filed timely. | Untimely because filed long after 45-day deadline. | Untimely; not within 45 days of the restitution order. |
| Does CAR 26(b) good cause apply to extending the restitution appeal deadline? | Good cause exists to extend under CAR 26(b). | No proper good cause shown. | Yes, good cause applies to extension, but no good cause shown in this case. |
| Did Hill demonstrate good cause for the untimely restitution appeal? | Factors favor allowing late appeal (defects in counsel, judicial economy). | No compelling factors; no directed counsel misadvisement; potential prejudice minimal. | No; good cause not shown. |
Key Cases Cited
- People v. Garcia, 55 P.3d 248 (Colo. App. 2002) (restitution as separately appealable component of sentence)
- People v. Boespflug, 107 P.3d 1118 (Colo. App. 2004) (timeliness requirements for sentencing appeals; jurisdictional limits)
- Suttmiller, 240 P.3d 504 (Colo. App. 2010) (standard for reviewing restitution-related issues on appeal)