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MCCLUSKEY LAW OFFICE
CRIMINAL DEFENSE 303-698-1603
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MCCLUSKEY LAW OFFICE is a criminal defense law office dedicated to protecting the rights of individuals charged with crimes. M. E. McCluskey, Esq. is available to represent clients charged with FELONIES and or MISDEMEANORS in Arvada, Aurora, Bennett, Beyers, Boulder, Breckenridge, Brighton, Broomfield, Castle Rock, Centennial, Cherry Creek, Denver, Edgewater, Engelwood, Federal Heights, Fort Collins, Fort Lupton, Fort Morgan Greeley, Greenwood Village, Frederick, Highlands Ranch, Kiowa, Lakewood, Lakeside, Littleton, Lochbuie, Lodo, Longmont, Louisville, Loveland, Northglenn, Parker, Platteville, Sheridan, Strasburg, Thornton, Telluride, Vail, Watkins, Westminster, Wheat Ridge, Windsor, Front Range communities and ADAMS, ARAPAHOE, BOULDER, BROOMFIELD, CLEAR CREEK, DENVER, DOUGLAS, EL PASO, GILPIN, JEFFERSON, LARIMER, and WELD counties.
16-18.5-104 ARTICLE 18.5. RESTITUTION IN CRIMINAL ACTIONS
Restitution is due and payable at the time that the order of conviction enters. You may be able to set up a payment plan with the collections investigator if you're unable to pay in full. The collections investigator will review the required written financial affidavits or disclosure of the your personal, household and business income, assets and liabilities. The collections investigator will research and perform verification of all oral and written statements made by you. The collections investigator has access to data maintained by state agencies including but not limited to wage data, employment data, and income taxes. If any warrant is issued for the arrest of the defendant due to nonpayment of restitution, information concerning the defendant's address and employment may be shared with a criminal justice agency.
If you are on probation and lose the ability to make a restitution payment this can be used as a defense against a violation of probation charge.
House Bill 14-1061 Prison sentences for failure to pay fines. Current law had provided that part of a criminal sentence must include a sentence to prison if an individual criminal defendant fails to pay a fine. This bill changes this requirement so that the sentence must include notice that if a defendant willfully fails to pay a fine, cost, restitution, or other monetary payment, the court may hold the person in contempt of court and sentence the person to prison. The bill provides that when the court imposes a monetary payment as part of the sentence, the court must notify the defendant that if he or she is unable to pay the amount ordered, the defendant may ask the court for a waiver or change in the payment.
Victim Impact Statement, Pre Sentence Investigation Report, Restitution
The victim in a criminal case submits an affidavit which includes a description of how the crime impacted him/her financial, physically, and emotionally. The victim's impact statement is sent to the court along with a PSIR, pre sentence investigation report, which includes the prior criminal history and convictions as well as the amount of restitution owed by the defendant. The judge orders the amount of restitution to be paid through the clerk of the court.
Civil damages such as pain and suffering and punitive damages are not included in the restitution order issued by a judge in a criminal case.
Some examples of restitution include but are not limited to out-of pocket expenses, counseling sessions, medical bills, rewards paid by victims. An example of restitution in a criminal mischief case would include the cost to replace property that was damaged by the defendant, a scratched hardwood floor, broken stained glass window.
When a defendant is sentenced to prison, Dept. of Corrections, the offender's restitution order goes with the offender. The DOC sets up a restitution account for the inmate. The monies deposited into the account are transferred to the clerk of the court to satisfy the restitution order.
Parole officers are responsible for collecting restitution payments from the parolees and sending the payments to the clerk of the court.
Offenders sentenced to a 1/2 way house are required to be employed or actively seeking employment. A percentage of the offender's employment income is sent to the clerk of the court.
As a typical condition of probation, the defendant is required to make restitution payments. Collection investigators in different jurisdictions set up and monitor the payment schedules.
Under § 16-18.5-105 (3) Whenever a defendant fails to make a payment of restitution within seven days after the date that the payment is due pursuant to a payment schedule established pursuant to this article, in addition to any other remedy, some of the actions the collections investigator may do include:
(a) Conduct an additional financial investigation of the defendant as described in section 16-18.5-104 (3);
b) Issue an attachment of earnings requiring that a certain portion of a defendant's earnings, not to exceed fifty percent, be withheld and applied to any unpaid restitution, if such an attachment does not adversely impact the defendant's ability to comply with other orders of the court. An attachment of earnings under this paragraph (b) may be modified to a lesser or greater amount based upon changes in a defendant's circumstances as long as the amount withheld does not exceed fifty percent and may be suspended or cancelled at the court's discretion. An attachment of earnings issued pursuant to this paragraph (b) shall be enforceable in the same manner as a garnishment in a civil action. For purposes of this section, "earnings" shall have the same meaning as set forth for any type of garnishment in section 13-54.5-101, C.R.S., and shall include profits.
(c) Request that the clerk of the court issue a writ of execution, writ of attachment, or other civil process to collect upon a judgment pursuant to article 52 of title 13, C.R.S.;
(d) Request that the court issue a notice to show cause requiring the defendant to appear before the court and show cause why the required payment or payments were not made. Upon a finding of the defendant's failure to pay, unless the defendant establishes that he or she was unable to make the payments, the court may:
(I) Revoke probation and impose any other sentence permitted by law;
(II) Order that the defendant be confined to jail with a recommendation that the defendant participate in a work release program;
(III) Extend the period of probation; or
(IV) Find the defendant in contempt of court and impose any authorized penalties for such action.
(e) (I) Employ any method available to collect state receivables, including the assignment of the defendant's accounts to a third party that has an agreement with the judicial department under this paragraph (e).
(II) The judicial department may enter into agreements with third parties for collection-related services. Any fees or costs of the third parties shall be added to the amount of restitution owed by the defendant, but such fees and costs shall not exceed twenty-five percent of the amount collected.