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People v. McLain

Court of Appeals of Colorado, Fourth Division

May 19, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Sean Michael McLain, Defendant-Appellant.

         Adams County District Court No. 12CR154 Honorable Jill-Ellyn Strauss, Judge

          Cynthia H. Coffman, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Cory D. Riddle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          HARRIS JUDGE

         ¶ 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.

         I. Background

         ¶ 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 days.

         ¶ 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 order.

         ¶ 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. 2015.

         II. Discussion

         ¶ 8 On appeal, McLain contends that the district court could not amend a final order of restitution to increase the amount ...


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