People v. McLain, 2016 COA 74

Defendant Sean McLain pled guilty to one count of theft in May 2012; a PSIR listed victim losses totaling $11,012.89 and a net loss figure of $8,159.91 (after insurance reimbursement).
At sentencing the prosecutor asked to reserve restitution for 30 days; the prosecution later moved for a restitution order of $1,000 to the victim and $2,852.98 to the insurer, and McLain did not object.
On August 9, 2012 the court entered a written restitution order totaling the prosecutor's requested amounts; the mittimus was amended to reflect that order.
Nearly ten months later the prosecution filed an amended motion under Crim. P. 36 seeking to increase restitution to $8,159.91, calling the original request a clerical error; the court granted the motion and amended the order.
McLain objected, arguing the increase was untimely under the restitution statute and not correctable under Rule 36; the district court nevertheless treated the change as ministerial and relied on § 18-1.3-603(3)(a) to permit supplementation.
The court of appeals vacated the amended order, holding the original restitution order was final, the PSIR losses were known to the prosecutor, § 18-1.3-603(3)(a) did not authorize supplementation, and Crim. P. 36 cannot be used to increase a defendant’s restitution obligation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 18-1.3-603(3)(a) permits increasing a final restitution order	The prosecution: original order did not foreclose further restitution and $8,159.91 was not known to court/prosecutor at sentencing, so subsection(3)(a) allows supplementation	McLain: original order was final and the PSIR contained the loss figure, so supplemental restitution is barred	Held: original order was final; the loss figure was known to the prosecutor via the PSIR; § 18-1.3-603(3)(a) did not authorize an increase
Whether Crim. P. 36 authorizes correcting the restitution amount to increase defendant's obligation	The prosecution: the August 2012 amount was a clerical/ministerial error and Rule 36 allows correction at any time	McLain: Rule 36 covers only clerical errors that do not change substantive rights; an increase would alter sentence and require notice/hearing	Held: Rule 36 permits only clerical changes that conform the record to the court’s intent and do not increase a sentence; it cannot be used to raise restitution amount here

People v. Romero, 197 P.3d 302 (Colo. App. 2008) (de novo review of statutory and rule interpretation)
People v. Rockne, 315 P.3d 172 (Colo. App. 2012) (permissible supplemental restitution when final amount not set and losses unknown)
People v. Harman, 97 P.3d 290 (Colo. App. 2004) (restitution as part of sentence; increasing restitution post-sentence implicates double jeopardy)
United States v. Werber, 51 F.3d 342 (2d Cir. 1995) (Rule 36 permits correction of clerical, not substantive, sentencing errors)
United States v. Spencer, 513 F.3d 490 (5th Cir. 2008) (amendment under Rule 36 to align written judgment with orally pronounced restitution when amount unchanged)
United States v. Portillo, 363 F.3d 1161 (11th Cir. 2004) (Rule 36 amendment to correct payees where restitution amount and sentence unchanged)
State v. Rodrigues, 218 P.3d 610 (Utah 2009) (distinguishing clerical calculation errors from judicial determination; permissible correction when consistent with parties’ agreement)