People v. Johnson, 88SA223

• Docket Nº: No. 88SA223
• Citation: 780 P.2d 504
• Case Date: October 02, 1989
• Court: Supreme Court of Colorado

Page 504

780 P.2d 504 The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Johnny Lee JOHNSON, Defendant-Appellee. No. 88SA223. Supreme Court of Colorado,
En Banc. Oct. 2, 1989.

Page 505

Donald E. Mielke, Dist. Atty., and Donna Skinner Reed, Deputy Dist. Atty., Golden, for plaintiff-appellant.

David F. Vela, Colorado State Public Defender, and Peggy O'Leary, Deputy State Public Defender, Denver, for defendant-appellee.

Chief Justice QUINN delivered the Opinion of the Court.

The question in this case is whether a court, in sentencing a defendant to a term of incarceration, is required to determine the amount of restitution which a convicted offender should pay to the victim of the crime and to include that amount in the judgment of conviction and endorse it upon the mittimus. In sentencing the defendant to the Department of Corrections for a term of four years, the district court denied the prosecution's motion, made pursuant to section 16-11-102(4), 8A C.R.S. (1986), to impose a restitution obligation on the defendant. We now vacate the judgment and remand the case to the district court for further proceedings to determine the defendant's restitution obligation to the victim.

The defendant, Johnny Lee Johnson, was charged in the district court of Jefferson County with the crime of vehicular assault. § 18-3-205, 8B C.R.S. (1986). ¹ The vehicular assault charge alleged, as pertinent here, that on May 25, 1987, the defendant operated a motor vehicle while under the influence of intoxicating liquor and caused serious bodily injury to Tracy Mickelson.

The defendant entered a not guilty plea to the charge, and the case was tried to the jury. The prosecution's evidence established that the defendant, while highly intoxicated from alcoholic beverages, drove a van owned by Mickelson, who was riding as a passenger, at a high rate of speed on Colorado State Highway 83. ² The defendant lost control of the vehicle, struck an embankment, and caused serious injuries to Mickelson. The jury returned a guilty verdict to the charge.

Prior to sentencing, the probation department filed a presentence report which included a victim impact statement prepared by Tracy Mickelson detailing his injuries and damages, and a statement by the defendant to the effect that both he and Mickelson were intoxicated at the time of the collision and that they were on their way to obtain more alcoholic beverages. ³ At a presentence hearing conducted by the court, Vernon Mickelson, the father of Tracy Mickelson, testified that as of the date of the hearing Tracy had already incurred medical expenses of $43,027.94, all of which were covered by a $50,000 insurance policy, and that his son had incurred expenses of $4,973.84 which were not covered by insurance.

The district attorney requested the court to order the defendant to make restitution to the victim in the amount of $4,973.84. The court expressly denied the district attorney's request for restitution, stating as follows:

The Court is going to deny the request for restitution in this matter. The Court believes that this is a matter that should properly be brought before the civil jurisdiction of this court for determination.

Page 506

The Court recalls specifically the facts and circumstances surrounding the accident and the involvement which the victim in this matter had.

The Court believes that there is a good probability that a certain amount of comparative negligence would be assessed the victim, Mr. Michelson, and that is a matter which must be determined by a civil court, and it would be inappropriate for this court to make any order for restitution based on those findings.

The court imposed a sentence of four years and executed a document entitled "Judgment of Conviction: Sentence: and Order to Sheriff (Mittimus)," which omitted any reference to restitution.

The district attorney filed this appeal pursuant to section 16-12-102(1), 8A C.R.S. (1986), ⁴ and contends that the district court erred as a matter of law in refusing to impose a restitution obligation on the defendant and to include the amount of restitution in the mittimus. We conclude that, based on a review of the statutory scheme relating to a convicted felony offender's restitution obligation to an injured victim, the district attorney's claim is well taken.

In cases involving felony conviction, the probation department is generally required to file a presentence report with the court. § 16-11-102(1), 8A C.R.S. (1988 Supp.). The presentence report must include information as to the defendant's family background, educational history, employment record, and past criminal history, as well as a victim impact statement prepared by the district attorney. Id. Section 16-11-102(4), 8A C.R.S. (1986), provides as...