People v. Gore
| Decision Date | 30 May 1989 |
| Docket Number | No. 88SA66,88SA66 |
| Citation | 774 P.2d 877 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Terry Allen GORE, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Robert R. Gallagher, Jr., Dist. Atty., James C. Sell, Chief Deputy Dist. Atty., Englewood, for plaintiff-appellant.
David F. Vela, Colorado State Public Defender, Barbara S. Blackman, Chief Appellate Deputy Public Defender, Denver, for defendant-appellee.
The state appeals the district court's dismissal of the complaint filed against Terry Allen Gore (Gore or the defendant). The judge ruled that he did not have power, under either the probation statute or the restitution statute, to order an extension of Gore's probation for an alleged probation violation. The narrow issue presented for our review is whether the trial court correctly ruled that it lacked the statutory power to revoke the defendant's probation because the revocation proceeding had not been instituted until after Gore's probation term had expired. We affirm.
In 1984 Terry Gore was charged with two counts of fraud by check and one count of theft. Pursuant to a plea bargain, Gore pled guilty to one count of criminal attempt to commit fraud by check, a class 4 felony, in exchange for dismissal of the other charges. Because the offenses occurred in 1983, the maximum possible sentence in the absence of extraordinary aggravating circumstances was four years imprisonment. § 18-1-105(1)(a)(I), 8B C.R.S. (1986). The district court imposed a four-year sentence. The court then suspended Gore's sentence on the condition that he spend thirty days in the county jail, satisfactorily complete a three-year probation term, and pay restitution. The three-year probation term began on May 11, 1984.
On May 8, 1987, three days before the expiration of Gore's probation term, he paid the restitution amount of $1,474.00 by signing over a check written to him, drawn on the account of Chase Gebearty. On May 11, the defendant's probation officer filed a report with the district court recommending that Gore's supervision be terminated. On May 12, the judge signed an order terminating Gore's probation.
On May 19, the Registry of the Arapahoe County District Court notified Gore's probation officer that Gebearty's account, on which the check had been drawn, had been closed due to insufficient funds. The check was returned unpaid to the registry. 1 On May 26, Gore's probation officer filed a complaint in the district court asserting that Gore had violated the conditions of his probation by not paying restitution. The complaint requested that the district court set a hearing in the matter "although the defendant's probation was terminated on May 12, 1987." An arrest warrant was issued and a revocation hearing was held.
Gore's attorney asked the district court to dismiss the complaint for lack of jurisdiction. Defense counsel's argument was that "the Court lost jurisdiction on May 12," therefore "probation was no longer in effect when the complaint was filed fourteen days later on May 26." The prosecution contended that the Court had not lost jurisdiction because "the Court in reliance on a check tendered on the Defendant's behalf terminated supervision and then the check [came] back short." A second hearing was held in February 1988 at which the parties agreed that the narrow question of jurisdiction raised here is one of first impression in Colorado. The trial court concluded that it did not have jurisdiction and entered this ruling:
The Court does note under 16-11-204.5 sub. (3) that when as a result of a plea bargain agreement a Defendant is ordered to make restitution pursuant to Subsection (1) of this section, the department or agency supervising the collection of such restitution may assert a charge of $15 to the Defendant for collection of each bad check or each bad check received as restitution payment....
And it seems to the Court that this is the specific remedy given in this case where a bad check is tendered.
The Legislature doesn't say that if probation is terminated and a bad check shows up that probation can be extended or somehow modified.
And in these cases it seems to the Court that the Court must follow the command of the Legislature and not try to create new law.
....
It seems to the Court that if the Legislature intended that somehow probation could be extended beyond the time of a termination, the Legislature would give the Court the direction to do it.
Instead, ... the Legislature has provided the Court with one remedy for a bad check and that's a $15 surcharge.
The Court is going to, at this time, grant the motion to dismiss on the basis that the Court finds that it has no statutory power to impose probation beyond the period of time.
.... The Court is making a very narrow ruling here ... and indicating that the powers granted to the Court do not, as indicated in the restitution statute, 16-11-204.5, and the probation statute, 16-11-201, grant the Court the power to extend probation where probation has been terminated with the consent of the people and by an order of the Court.
(Emphasis added).
These facts present a question of first impression in Colorado. Section 16-11-201, 8A C.R.S. (1986), provides that a sentencing court can place certain offenders on a term of probation. After the sentencing court considers a number of factors it may "grant the defendant probation for such period and upon such terms and conditions as it deems best." §§ 16-11-202 & -203. As a condition of probation, the court is required to order "that the defendant make restitution to the victim ... for the actual damages which were sustained." § 16-11-204.5. The restitution statute provides:
Restitution as a condition of probation.
(1) As a condition of every sentence to probation, the court shall provide that the defendant make restitution to the victim of his conduct or to a member of the victim's immediate family for the actual damages which were sustained. Such restitution shall be ordered by the court as a condition of probation.... The court shall fix the manner and time of performance....
(2) If the defendant fails to pay the restitution, he shall be returned to the sentencing court which, upon proof of failure to pay, may:
(a) Modify the amount of the restitution;
(b) Extend the period of probation;
(c) Order the defendant committed to jail with work release privileges; or
(d) Revoke probation and impose the sentence otherwise required by law.
(3) When, as a result of a plea bargain agreement, a defendant is ordered to make restitution pursuant to subsection (1) of this section, the department or agency supervising the collection of such restitution may assess a charge of fifteen dollars to the defendant for collection of each bad check 2 or each bad check received as a restitution payment.
8A C.R.S. (1986 & 1988 Supp.) (emphasis added); see also § 16-7-304, 8A C.R.S. (1988 Supp.) When a probationer is accused of not making restitution as ordered, revocation of probation is not automatic. "[B]efore revocation of probation for failure to make ordered restitution payments can be effected, the trial court must find that the defendant had the ability to pay at the time the payments should have been made." Strickland v. People, 197 Colo. 488, 490, 594 P.2d 578, 579 (1979); People v. Romero, 192 Colo. 106, 108, 559 P.2d 1101, 1102 (1976).
"Probation is a creature of statute" and the terms of probation must be derived from statute. People v. Ray, 192 Colo. 391, 393, 560 P.2d 74, 75 (1977); People v. Ledford, 173 Colo. 194, 196, 477 P.2d 374, 375 (1970). Any conditions imposed as terms of probation must be authorized by the General Assembly, which has addressed the restitution statute, section 16-11-204.5, in general terms. People v. Deadmond, 683 P.2d 763, 772 (Colo.1984). Other than the fifteen dollar charge, the restitution statute does not provide a remedy for collection of a bad check. The question presented to the judge in this case was whether, after probation had been terminated by court order, the court has statutory authority to conduct a revocation hearing and determine whether the defendant had violated a condition of his probation by writing a bad check.
Other jurisdictions have come to different conclusions in addressing the dilemma posed by the "last-minute" probation offender, and the cases fall into three general categories. See generally New Jersey v. Gibson, 156 N.J.Super. 516, 530-531, 384 A.2d 178, 185 (1978); Annotation, Power of Court, After Expiration of Probation Term, to Revoke or Modify Probation for Violations Committed During the Probation Term, 13 A.L.R.4th 1240 (1982). Some jurisdictions hold that a trial court retains jurisdiction to revoke a defendant's probation for a reasonable time after expiration of the probationary term. See, e.g., Phoenix v. Nebraska, 162 Neb. 669, 77 N.W.2d 237 (1956). Some jurisdictions require that revocation proceedings be not only instituted but also completed prior to expiration of the probation term. See. e.g., Cook v. Virginia, 211 Va. 290, 176 S.E.2d 815 (1970). The majority of jurisdictions hold that the trial court retains jurisdiction as long as proceedings are instituted prior to expiration of the probation term. See, e.g., New Jersey v. Gibson, 156 N.J. Super. at 530-531, 384 A.2d at 185. The determination of which rule is applied depends in part on construction of the state's probation statute.
Some states hold that jurisdiction can be exercised over a probationer for a reasonable time after expiration of the probation term. For example, the Nebraska Supreme Court has held that because the Nebraska probation statute did not contain language giving the court power to revoke, modify, or extend probation "during the probationary term," the trial court could exercise jurisdiction over the probationer within a...
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