County District Court No. 12CR154 Honorable Jill-Ellyn
Cynthia H. Coffman, Attorney General, Deborah Isenberg Pratt,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Cory D.
Riddle, Deputy State Public Defender, Denver, Colorado, for
1 The primary issue in this appeal is whether Crim. P. 36,
which allows the trial court to correct "clerical"
errors in a judgment or order, authorizes the district court
to amend a final restitution order to increase the amount of
restitution owed by the defendant. We conclude that it does
not and, because the amendment was not otherwise authorized
under the restitution statute, we vacate the amended order
and remand for reinstatement of the original order.
2 In May 2012, defendant, Sean Michael McLain, pleaded guilty
to one count of theft. The probation department prepared a
presentence investigation report (PSIR), in which it
indicated that the victim had requested $8159.91 in
restitution. The probation officer attached supporting
documentation to the PSIR, including a victim impact
statement detailing losses totaling $11, 012.89 and an
insurance reimbursement of $2852.98, as well as a letter from
the insurance company confirming a payment of $2852.98, which
accounted for the victim's $1000 deductible.
3 McLain was sentenced in July 2012 to five years in
community corrections. At sentencing, the prosecutor did not
ask that restitution be ordered in accordance with the PSIR
but instead requested that restitution be reserved for thirty
4 The prosecution timely filed its motion for restitution,
requesting $1000 for the victim and $2852.98 for the
victim's insurance company. McLain informed the court in
a response to the motion that he had no objection to the
restitution figure. The next day, on August 9, 2012, the
court entered a written order stating that "restitution
be ordered to [victim] in the amount of $1, 000.00 and
[insurer] in the amount of $2, 852.98." The order
contained no additional terms, conditions, or qualifiers, nor
did it depart in any way from the prosecutor's requested
5 Nearly ten months later, on June 5, 2013, the prosecutor
filed an amended motion to impose restitution pursuant to
Crim. P. 36. The prosecutor maintained that she had made a
"clerical error" in her original motion by failing
to request the $8159.91 in losses referenced in the PSIR.
6 Without awaiting a response from McLain, the court promptly
granted the motion and on June 9, 2013, ordered that the
"[victim] be awarded restitution in the amount of
$8159.91." Five days later, McLain filed an objection to
the prosecutor's request for additional restitution,
arguing that the request was untimely under the restitution
statute and that Crim. P. 36 did not apply.
7 The court held a short hearing and determined that it could
correct the prosecutor's "[ministerial] error"
and amend the order under section 18-1.3-603(3)(a), C.R.S.
8 On appeal, McLain contends that the district court could
not amend a final order of restitution to increase the amount